Case: ATUL CHANDRA DAS(D) TR.LRS Vs. RABINDRA NATH BHATTACHARYA(D)TR.LRS.&amp;ORS

of India, mutual insurance company, provident insurance society or from a provident fund; (e) an advance made on the basis of a negotiable instrument as defined in the Negotiable Instruments Act, 1881, (26 of 1881) other than a promissory note; (f) Omitted by W.B. Money Lender Amendment Act, (Act IV of 1931) (g) * * * * (h) a loan made to or by the Administrator General and Official Trustee of West Bengal or the Commissioner of Wakfs or the Official Assignee or the Official Receiver of the High Court in Calcutta; (i) a loan or debenture in respect of which dealings are listed on any Stock Exchange;? 13. Commercial loan is defined in Section 2(4) of the State Act. Section 2(22) defines suit to which this Act applies. It reads as follows:- "2(22) ?suit to which this Act applies? means any suit or proceeding instituted or filed on or after the 1 st day of January, 1939 or pending on that date and includes a proceeding in execution- (a) for the recovery of a loan advanced before or after the commencement of this Act; (b) for the enforcement of any agreement entered into before or after the commencement of this Act, whether by way of settlement of account or otherwise, or of any security so taken, in respect of any loan advanced whether before or after the commencement of this Act; or (c) for the redemption of any security given before or after the commencement of this Act in respect of any loan advanced whether before or after the commencement of this Act.? 14. Section 36 comes under the heading ‘Reopening of transactions?. It deals with the power of the Court to exercise all or any of the various powers which are mentioned therein. Sub Section 4 of Section 36 reads as follows:- ?36(4). This Section shall apply to any Suit, whatever it forms may be, if such suit is substantially one for the recovery of a loan or for the enforcement of any agreement of security in respect of a loan or for the redemption of money such security.? 15. It will be noticed that a Suit for redemption is mentioned as suit to which Section 36 applies. Section 38 undoubtedly enables the borrowers to seek a direction for taking accounts. 16. We have noticed the relief which was sought in the suit which was considered by the learned Single Judge in Swarnalata Tat AIR 1984 Calcutta 130. In fact, Court in the said case could not find a mortgage proved also. The reliefs on the other hand in the suit filed by Bhattacharya include reliefs relating to redemption in the form it is asked for. In fact, no issue in this regard was taken before the Trial Court. We see no reason to non-suit, the Bhattacharyas on this ground which is taken for the reasons which we have given. 17. The last contention taken is that Section 37(a) of the State Act is repugnant to Section 58(c) of the Central Act namely, the Transfer of Property Act. The contention runs as follows:- Money lending falls as entry (30) in the State List. Transfer of Property other than agricultural land falls in Entry 6 in the concurrent list. The State legislature in enacting Section 37(a) of the State Act, a law relating to money lending has made a law which is inconsistent and therefore, repugnant to the law made by the Parliament in Section 58(c) of the Transfer of Property Act. This contention is taken for the first time in this Court. We also see no merit in the same at any rate. Section 37(A) is traceable to the Entry ‘Transfer of Property? which is found in the concurrent list. Article 254 of the Constitution of India reads as follows:- ?254. Inconsistency between laws made by Parliament and laws made by the Legislatures of States (1) If any provision of a law made by the Legislature of a State is repugnant to any provision of a law made by Parliament which Parliament is competent to enact, or to any provision of an existing law with respect to one of the matters enumerated in the Concurrent List, then, subject to the provisions of clause ( 2 ), the law made by Parliament, whether passed before or after the law made by the Legislature of such State, or, as the case may be, the existing law, shall prevail and the law made by the Legislature of the State shall, to the extent of the repugnancy, be void. (2) Where a law made by the Legislature of a State with respect to one of the matters enumerated in the concurrent List contains any provision repugnant to the provisions of an earlier law made by Parliament or an existing law with respect to that matter, then, the law so made by the Legislature of such State shall, if it has been reserved for the consideration of the President and has received his assent, prevail in that State: Provided that nothing in this clause shall prevent Parliament from enacting at any time any law with respect to the same matter including a law adding to, amending, varying or repealing the law so made by the Legislature of the State .? 18. In this case proceeding on the basis that there is an inconsistency between Section 58(c) of the Transfer of Property Act and Section 37(A) of the State Act, in view of the assent given by the President, the matter falls under Article 254(2). Therefore, despite the inconsistency, Section 37(A) of the State Act will prevail in the State. 19. The argument that being part of State Act which is the Money Lending Act and Money lending is in the state list and therefore, it is a case of legislative, incompetence, does not appeal to us. We have found that the provisions of 37(A) is traceable to the Entry ‘Transfer of Property? in the Concurrent List and that Article 254(2) saves the provision.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]10. Keeping Section 58(c) side by side with Section 37(a) of the State Act, the conclusion is inevitable that the State legislature has intended to override the effect of proviso to Section 58(c) of the Transfer of Property Act by enacting Section 37(a) in the State Act. Section 37(a) was incorporated by way of an amendment in the State Act. Reading of Section 37(a) brings out the Legislative intent with unambiguous clarity and therefore the High court was right in relying upon Section 37(a) of the State Act to find that though it was by agreement dated 07.12.1959 which is a separate document that condition to make it a mortgage was incorporated it would not make any difference. We may also notice that despite the sale deed dated 27.11.1959, the Bhattacharyas continued to be in possession of the plaint scheduled property and it has been found that they paid the taxes. It is further found that the market value of the property would not have been less than Rs.30 thousand as on the date of the alleged sale namely 27.11.1959.It will be noticed that a Suit for redemption is mentioned as suit to which Section 36 applies. Section 38 undoubtedly enables the borrowers to seek a direction for taking accounts.We have noticed the relief which was sought in the suit which was considered by the learned Single Judge in Swarnalata Tat AIR 1984 Calcutta 130. In fact, Court in the said case could not find a mortgage proved also. The reliefs on the other hand in the suit filed by Bhattacharya include reliefs relating to redemption in the form it is asked for. In fact, no issue in this regard was taken before the Trial Court. We see no reason to non-suit, the Bhattacharyas on this ground which is taken for the reasons which we have given.The last contention taken is that Section 37(a) of the State Act is repugnant to Section 58(c) of the Central Act namely, the Transfer of Property Act. The contention runs as follows:- Money lending falls as entry (30) in the State List. Transfer of Property other than agricultural land falls in Entry 6 in the concurrent list. The State legislature in enacting Section 37(a) of the State Act, a law relating to money lending has made a law which is inconsistent and therefore, repugnant to the law made by the Parliament in Section 58(c) of the Transfer of Property Act. This contention is taken for the first time in this Court. We also see no merit in the same at any rate. Section 37(A) is traceable to the Entry ‘Transfer of Property? which is found in the concurrent list.In this case proceeding on the basis that there is an inconsistency between Section 58(c) of the Transfer of Property Act and Section 37(A) of the State Act, in view of the assent given by the President, the matter falls under Article 254(2). Therefore, despite the inconsistency, Section 37(A) of the State Act will prevail in the State.The argument that being part of State Act which is the Money Lending Act and Money lending is in the state list and therefore, it is a case of legislative, incompetence, does not appeal to us. We have found that the provisions of 37(A) is traceable to the Entry ‘Transfer of Property? in the Concurrent List and that Article 254(2) saves the provision.