* 1 * Appeal-121/2007 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURSIDICTION APPEAL NO.121 OF 2007 IN S.C. SUIT NO. 2489 OF 1983 Tarabai Ebrahim Siamwala of Bombay and Madras Indian Inhabitant residing at Jones Madras-I ....Appellant/Orig.Plaintiff : V E R S U S : 1. Mohamed Amin Haji Ismail & Ors. Of Bombay, Indian Inhabitant residing at 10/145, Azad Nagar Andheri (East), Bombay-400 058. 2. Smt. Aminabai Haji Ismail of Bombay, Indian Inhabitant residing at 2/1, Happy House Vakola Masjid, Santacruz Bombay- 400 055 3. Abdulla A. Chasmawala 4. Makki A. Darvesh all of Bombay, Indian Inhabitant being the trustees of family * 2 * Appeal-121/2007 Trust known as Haji Ismail Haji Ahmed Family Trust having their office at 42-New Kantawadi Road, Bandra, Bombay- 400 050 5. Mrs. Rubabbai, widow of Husseinbhai Ranjiwala aged-70 6. Siraj Husseinibhai Ranijiwala, aged 52. 7. Fakhruddin Husseinibhai Ranijiawala Aged 50. 8. Kasimbbai Husseinibhai Ranijiwala Aged 43 9. Asmabai Husseinibhai Ranijiwala Aged 48 10. Khadijabai Husseinibhai Ranijiwala 11. Zainabbai Husseinibhai Ranijiwala, all of Bombay, Indian Inhabitant, Dawood Bohra Inhabitants No.5,7,8, 10 and 11, residing at 81, Mohammed Ali Road, Lehri House, 2nd Floor, Room No.13, Bombay-400 013. And No.6 residing at 217-A Dr.Mascasanhas Road, Husseni House, 2nd Floor, Room No.10, Bombay-400 010, No.9-Residing at C/o.A.A. Dilawas Chowk, Post Box No.18, Yeela Dist : Nasik ......Respondents/ Orig.Defendants ........... * 3 * Appeal-121/2007 Ms. P. Bhatia with Mr. S.T. Zaidy i/by. Zaidy & Co., Advocate for appellant. Mr. Pankaj Kowli i/by. Panchmati & Co., Advocate for respondents. ......... Coram : D.K. Deshmukh & Smt. R.P. SondurBaldota, JJ. Dated : 17th June 2010. P.C. :- 1. This appeal is preferred against the judgment and decree dated 27th November 2006 passed by the learned Single Judge of this Court in S. C. Suit No.2489 of 1983. The appellant is the original plaintiff and decree holder in whose favour conditional decree of redemption of mortgage has been passed. The challenge to the impugned judgment is limited to the condition by which the appellant is directed to pay interest to respondents no.1 to 4 as per the indenture of mortgage. * 4 * Appeal-121/2007 2. It was the contention of the appellant that in view of Section 23 of the Bombay Money Lenders Act, no decree can be passed for money in favour of respondents no.1 to 4 in respect of mortgage debt, exceeding the principal amount and the arrears of interest not exceeding the principal amount. Respondents no.1 to 4 however, claimed exemption from the application of Section 23 in view of Section 2(9)(b) of the Bombay Money Lenders Act contending that respondent no.4 is an Association “ ” registered under the Bombay Public Trust Act, 1950 and is excluded from the application of Section 23 of the Act. The learned Single Judge accepted the contention of respondents no.1 to 4 and directed the appellant to pay to respondents no.1 to 4, interest upto date as per the mortgage deed. The reasoning given by the learned Single Judge for accepting the contention of respondents no.1 to 4 is that, It is admitted position that though it is a “ family Trust, it is a Trust registered under the Bombay Money Lenders Act. It is run by the trustees which keep on changing and * 5 * Appeal-121/2007 the trustees are registered with the Charity Commissioner. Thus, it is an association of the trustees who are the trustees of the family, who are the trustees of the Trust which is registered under the provisions of Bombay Public Trusts Act and therefore the advance given by this Trust would not fall under the definition of loan given in sub- section (9) of Section 2 of the Bombay Money Lenders Act.” 3. The two relevant provisions under the Bombay Money Lenders Act, read as under : S.23. “ Notwithstanding anything contained in any agreement or any law for the time being in force, no court shall in respect of any loan whether advanced before or after the date on which this Act comes into force, decree, on account of interest, a sum greater than the principal of the loan due on the date of the decree .” S.2(9)(b) “ loan means an advance at interest “ ” whether of money or in kind but does not include-(a) a deposit of money or other property * 6 * Appeal-121/2007 in a Government Post Office, Bank or in other Bank or in a company or with a Co-operative Society; (b) a loan to, or by, or a deposit with any society or association registered under the Societies Registration Act, 1860 or any other enactment relating to a public, religious or charitable object.” 4. We have heard the learned counsel for both the sides. Ms. Bhatia, the learned counsel for the appellant, submits that the claim of respondents no.1 to 4 of being an association cannot be accepted and similarly registration of their Trust under the Bombay Public Trusts Act can hardly be said to be the registration as contemplated under Section 2(9)(b) of the Act. Mr. Kowli, the learned counsel for respondents no.1 to 4, on the other hand, contends that respondents no.1 to 4 being a group of persons i.e. trustees of a family trust by name, Haji Ismail Haji Ahmed Family Trust, and the trust being registered as a public and charitable trust with Charity Commissioner, Mumbai, they should be treated as an Association duly registered as * 7 * Appeal-121/2007 required under Section 2(9)(b) of the Bombay Money Lenders Act. Ms. Bhatia, draws our attention to the Websters English Dictionary for meaning of the word Association . “ ” The meaning given therein is an organization of people “ with a common name . We find substance in the ” submissions of Ms. Bhatia. Respondents no.1 to 4-trustees of the private trust are not association, as the group formed by them is not an organization of people with common name. Further, the registration of their trust under the Bombay Public Trusts Act cannot be same as the registration of Association contemplated under Section 2(9)(b) of the Bombay Money Lenders Act. Therefore, in our opinion, the learned Single Judge was not correct in accepting the contention of these respondents that the provision of Section 23 of the Bombay Money Lenders Act is not attracted to the suit transaction. Consequently, the appeal is liable to be allowed. The record shows that, the debt due under the indenture of transfer of mortgage dated 22nd October, 1964 in favour of respondents no.1 to 4 was of Rs. * 8 * Appeal-121/2007 29,031.25p. During the pendency of the suit, by the order dated 7th January, 1998 passed in Notice of Motion No. 3439 of 1995 taken out by the respondents, a sum of Rs.59,062/- came to be paid to respondents no.1 to 4 towards discharge of the debt. This payment must be held to occur as satisfaction of the mortgage debt. In the circumstances we pass the following order. O R D E R . The appeal is allowed. The impugned decree is modified to delete the condition imposed therein. The suit is decreed in terms of prayers (a) (b) and (c) . [SMT. R.P. SONDURBALDOTA, J] [D.K. DESHMUKH, J] * 9 * Appeal-121/2007