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High Court Of Calcutta
KALYAN JYOTI SENGUPTA
PRANIL KUMAR SETT - Appellant
Versus
KISHORILAL BYSACK - Respondent
Suit 1596 Of 1966
Decided On : 07/05/2002
BENGAL MONEY LENDERS ACT, 1940 - APPLICABILITY - MORTGAGE DECREE - INTERPRETATION OF SECTIONS 30 AND 36 - REOPENING OF DECREE - LIMITATION - INTEREST - REDEMPTION OF MORTGAGE - RIGHT OF AUCTION PURCHASER.
Fact of the Case:
The applicant, an auction purchaser of the suit property, filed an application to set aside the report of the Registrar Original Side and for determination of the amount payable by the defendant and/or the applicant. The applicant contended that the report was bad in law as it did not take into account the provisions of the Bengal Money Lenders Act, 1940 (hereinafter referred to as the Act).
Finding of the Court:
The court held that the applicant had locus standi to make the application as he was the successor-in-interest of the mortgaged property. The court also held that the question of limitation did not arise in the case as the right of redemption of the mortgagor subsists till a final decree debarring the defendant from all rights to redeem the mortgaged property has been passed.
Issues: 1. Whether the applicant, being an auction purchaser, had locus standi to make the application? 2. Whether the report of the Registrar was bad in law for not taking into account the provisions of the Act? 3. Whether the question of limitation arose in the case?
Ratio Decidendi: 1. The court held that the applicant had locus standi to make the application as he was the successor-in-interest of the mortgaged property, relying on Section 91 of the Transfer of Property Act, which allows any person with an interest in or charge upon the mortgaged property to redeem the mortgage. 2. The court held that the report of the Registrar was not bad in law as the Registrar was not required to follow the provisions of the Act at the time of submitting the report. The court observed that the question of application of the Act would arise only when the plaintiff applied for a final decree in terms of the preliminary decree. 3. The court held that the question of limitation did not arise in the case as the right of redemption of the mortgagor subsists till a final decree debarring the defendant from all rights to redeem the mortgaged property has been passed, relying on Rule 3 of Order XXXIV of the Code of Civil Procedure.
Final Decision: The court allowed the application to the extent that the applicant was directed to pay the entire amount as calculated by the Registrar, after giving adjustment of payment made by the Official Receiver, and upon such payment, all documents relating to the title of the property were to be handed over to the applicant. The court also directed the department concerned to correct the cause title of the petition by inserting the names of the heirs and legal representatives of the parties.
( 1 ) THIS Motion has been taken out by one Pran Kumar Bhattacharaya being the auction-purchaser in respect of the suit property being premises No. 16/b ramesh Dutta Street, Calcutta (hereinafter referred to as the suit property) for, in substance, setting aside of the report of the registrar Original Side and also for determination of the amount payable by the defendant no (sic) and/or by the applicant herein, and for other consequential reliefs. The original plaintiff Pranil Kumar Sett, since deceased filed the above suit for enforcement of the mortgage which was created by one Kishorilal Bysack being the original defendant No. 1. On 28th August 1973 preliminary decree was passed. After this suit was filed the original defendant No. 1 had created a puisne mortgage in favour of the defendant No. 2, thus, he was made party to this suit. This Court while passing preliminary decree declared that the amount due to the plaintiff in respect of his mortgage dated 22nd May 1964 on account of principal was a sum of Rs. 24,707 and to grant interest on the said principal sum at the rate of 8 per cent per annum from 22nd may 1964 until realization and a sum Rs. 2550 already received by the plaintiff on account of interest in respect of the said mortgage property. The Court further declared in the preliminary decree that the plaintiff was entitled to a personal decree against the defendant Kishorilal Bysack for the sum of Rs. 2500 with interest thereon, at the rate of 4 per cent per annum from 26th November 1963 up to 11th August 1966. It was further declared that the amount due to the defendant Netai Chand dhar (being the defendant No. 2) in respect of his mortgage dated 29th July 1966 for principal was a sum of Rs. 5000 and he was entitled to interest on the said principal sum at the rate of 10 per cent per annum from 29th July 1966 until realization. This Court further declared that the plaintiff was also entitled to personal decree against the defendant No. 1 Kishorilal Bysack (since deceased) for the sum or Rs. 1000 with Interest thereon at the rate of 6 per cent per annum from the date hereof until realization. In terms of the preliminary decree the registrar Original Side of this Court was directed to take an account of the amount paid by the Official Receiver appointed in the suit and after institution of this suit on account of the said claim of Rs. 1000/- of the plaintiff and to give credit to the defendant Kishorilal Bysack for the amount so paid. It was provided amongst others that on payment of the amount due to the plaintiff by the defendant Kishorilal Bysack and Netai chand Dhar or any of them in the manner prescribed in the Clause 1 (a) and on payment thereof before the said date as may be fixed for such amount as may adjudged due in respect of such costs of the suit and such costs, charges and expenses as may be payable under Rule 10 together with such subsequent interest as may be payable under rule 11 of Order XXXIV of the First Schedule of the Code of Civil Procedure 1908, the plaintiff shall bring into Court all documents in his possession or power relating to the mortgage property being the premises No. 169/b Ramesh Dutta Street, Calcutta by the said period mentioned and all such documents shall be delivered over the said defendants kishorilal Bysack and Netai Chand dhar (who are meeting the payment or to such person as the Court may direct) and the plaintiff shall, if so required, recover or retransfer the said property free from the said mortgagee and clear off and from all encumbrances created by the plaintiff or any person claiming under him or any person whom he claims and also free from all liabilities whatsoever arising from the mortgage or this suit. It was further provided in the said decree that on payment of the amount due to the said defendant Netai chand Dhar by the said defendant Kishorilal bysack. the mortgage in the manner prescribed in the said Clause 1 (b) and on payment th
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