Case: Rai Ram Taran Banerjee Bahadur (Since Deceased) and After Him Shoshi Coomarbanerjee and Another Vs. Mrs. D. Hill and Others

2. Shortly stated, the facts are that on the 24th February, 1933, one Mrs. D. J. Hill effected a mortgage of premises Nos. 19 and 20, Ekbalpore Lane, Kidderpore, 24 Parganas, in favour of Rai Ramtaran Banerjee Bahadur in the sum of Rs. 10, 000. An additional amount of Rs. 2, 000 was borrowed on 8th June, 1933, on the same security. On the 21st June, 1939, a suit was instituted to recover the amount due at the foot of these two transactions. A final decree was passed in the suit on the 12th April, 1940, for a sum of Rs. 19, 755-15-0. Execution was then taken out and the mortgaged property was sold for Rs. 43, 300 on the 19th July, 1940. The price fetched at the auction satisfied the amount due on the decree to the extent of Rs. 20, 518-14-6 and the balance was deposited in Court in the account of the judgment-debtor. The sale was confirmed on the 21st August, 1940, and possession to the auction purchaser was delivered on the 24th August, 1940. The amount deposited in Court was withdrawn by the judgment-debtor and her creditors on the 3rd September, 1940, and the execution case was dismissed as finally satisfied on the 9th September, 1940.2. Shortly stated, the facts are that on the 24th February, 1933, one Mrs. D. J. Hill effected a mortgage of premises Nos. 19 and 20, Ekbalpore Lane, Kidderpore, 24 Parganas, in favour of Rai Ramtaran Banerjee Bahadur in the sum of Rs. 10, 000. An additional amount of Rs. 2, 000 was borrowed on 8th June, 1933, on the same security. On the 21st June, 1939, a suit was instituted to recover the amount due at the foot of these two transactions. A final decree was passed in the suit on the 12th April, 1940, for a sum of Rs. 19, 755-15-0. Execution was then taken out and the mortgaged property was sold for Rs. 43, 300 on the 19th July, 1940. The price fetched at the auction satisfied the amount due on the decree to the extent of Rs. 20, 518-14-6 and the balance was deposited in Court in the account of the judgment-debtor. The sale was confirmed on the 21st August, 1940, and possession to the auction purchaser was delivered on the 24th August, 1940. The amount deposited in Court was withdrawn by the judgment-debtor and her creditors on the 3rd September, 1940, and the execution case was dismissed as finally satisfied on the 9th September, 1940.3. It is thus clear that all essential proceedings in execution of the decree terminated before the 1st September 1940, when the Bengal Money Lenders Act came into force. It is further apparent that the suit was instituted after the 1st January, 1939, the date fixed by the Act as a terminus a qua for application of some of the provisions of the Act.On the 30th August, 1941, Mrs. Hill filed the suit out of which this appeal arises for relief against excess interest included in the final decree in contravention of the provisions of the Act. The suit was dismissed by the Subordinate Judge on the finding that decrees passed after the 1st January, 1939, could not be reopened under sec. 36 of the Bengal Money Lenders Act and the reliefs provided for in that section were only available with respect to decrees passed before that date, provided these had not been fully satisfied till then. The High Court on appeal reached a contrary conclusion and held that the reliefs allowed by the section were available to the Plaintiff in the case and there was nothing in sec. 36 which took away the Courts jurisdiction to grant them.

Reasoning: 7. Retrospective effect has been expressly given to the Act by including within its scope loans advanced before its enforcement. So far as loans advanced after the coming into force of the Act are concerned, they are obviously within the ambit of a suit to which the Act apples. The definition includes within its scope proceedings in execution and by way of appeal.Briefly summarized, the dennition contemplates the existence of the following classes of decrees :-(1) Those passed before 1st January, 1939, regarding which an execution proceeding may be pending(2) Those passed before 1st January, 1939, an appeal against which is pending or is filed on that date or after that date(3) Those passed after 1st January, 1939, and before 1st September, 1940, in suits instituted or filed on or after that date or pending then(4) Those passed after 1st September, 1940, the date of commencement of the Act, on loans advanced before or after that date.8. It is apparent therefore that our of the four kinds of decrees that would be in contemplation of the legislature in the definition of the expression A suit to which this Act applies only classes (1) and (2) could be in existence before 1st January, 1939, and classes (3) and (4) could only come into existence after 1st January, 1939 and 1st September, 1940. Some decrees in classes (1) and (2) could be such as may have been satisfied by payment even though proceedings in execution or appeal were pending.9. Under this section no borrower is liable to pay after 1st September 1940 interest at a rate exceeding eight per cent on secured loans, even if included in a decree passed before that date (1-9-1940). This is the substantive law on the question of a debtors liability. In express terms in sub-section (2) it is stated that on decrees passed before 1-9-1940 interest has to be reduced to the rate allowed by the section, whether these decrees came into existence before 1-1-39 or after 1-1-39. Decrees passed after 1-9-1940 are obviously governed by the provisions of this section.10. Excess interest paid after 1st January 1939 and before 1st September 1940 and included in a decree is made refundable. It cannot be therefore argued that the legislature failed to provide for a relief regarding excess interest included in decrees passed between 1-1-1939 and 1-1-1940. Qua these it provided a larger relief (i.e. of refund) than provided for elsewhere in the Act.The present case falls within section 30 (2) because the decree was made before the commencement of the Act, namely, 1st September 1940, and excess interest is included in it which is not allowed by the Act. To determine the amount of the excess it is necessary to reopen it.11. This section indicates the reliefs a Court can grant where a judgment debtor has been made liable on a contract for interest in excess of that provided for in this Act. It confers jurisdiction on Court to reopen a transaction and take an account between the parties and release the borrower of all liabilities for excess interest. It further confers powers on the Court in certain cases to direct refund of the amount of excess interest. The Court is also empowered to revise a contract made between the parties. The proviso to the section prohibits the doing of anything which affects any decree of the Court, other than a decree in a suit to which this Act applies and which was not fully satisfied by 1st January, 1939. The words of the proviso which was not fully satisfied by 1st January, 1939 have furnished a plausible argument to the appellant in so far as the contends that as no decree passed after 1st January 1939 could possibly be satisfied by that date, such decrees are outside the scope of exception to the proviso. The language of the proviso in plain terms means, (1) that there is no jurisdiction to reopen decrees passed in suits to which this Act does not apply, and (2) that decrees passed in suits to which the Act applies dan be reopened. Such decrees are of four classes, as already indicated, and all of them are within the exception to the proviso, barring those that have not only been passed before 1-1-1939 but have also been satisfied before then. The words of the proviso which was not fully satisfied by 1-1-1939 are in the nature of an exception to an exception and this exception also is of a very limited nature. Out of decrees passed in suits to which this Act applies, a few may have been passed and satisfied before 1-1-1939, and an immunity was given to them from the provisions of section 36; otherwise it would have affected all of them. The language used in the proviso on its first reading creates a little hesitation as to its correct meaning; but when read with the interpretation clause and in the light of section 30(2) and section 36 (5) and (6), the doubt disappears. Once it is held that all decrees passed in suits to which the Act has application are outside the proviso, then the only decrees that remain within it in such suits are those which may have been passed before 1st January, 1939, and were fully satisfied by that date. The general exception contained in the proviso concerned decrees in all other kinds of suits. In other words, there is one general exception provided for in the proviso qua decrees in suits other than those to which the Act applies and then there is a limited exception provided therein for certain decrees passed in suits to which the Act applies.Sub-section (6) of sec. 36 provides a summary and an alternative remedy regarding decrees passed but not satisfied by 1st January, 1939. Instead of a resort to a regular suit, in such cases relief can be claimed in execution or by preferring a review within one year or by raising the question before the Court of appeal, it an appeal is pending. The legislature in its anxiety to give relief to debtors provided facilities to obtain in all possible ways, and the power to review was also enlarged with this object. It seems to me that any other interpretation of the section would produce strange results and would result in anomalies. The words of the section which were not fully satisfied by 1st January, 1939. if interpreted in the manner suggested by the Appellants learned counsel, would exclude all decrees passed in suits pending on 1st January, 1939, or instituted after that date from the scope of the exception to the proviso, because decrees which can be satisfied by 1st January, 1939, can only be those passed antecedent to that date. This construction would produce a repugnancy between the two parts of the same section, the latter part providing that only decrees that came into existence before 1st January, 1939, are within it and the earlier part saying that decrees passed in suits filed after 1st January, 1939, are also included in it. Such a construction has to be avoided and if it is not possible to avoid it, then these words have to be ignored because otherwise the enactment qua decrees passed in suits to which the Act applies becomes, to all intents and purposes, useless. Any reference to decrees passed in suits to which the Act applies would have been unnecessary in suits to which Act applies would have been unnecessary in the section. The construction suggested by the Appellants also creates an anomaly inasmuch as the result or it is that older decrees can be reopened under sec. 30. If not satisfied, while more recent ones in which excess interest against the law is included become immune from attack. In a statute framed to relieve debtors from excessive interest, such a construction is unsustainable. The words of a remedial statute must be construed so far as they reasonably admit so as to secure that the relief contemplated by the statute shall not be denied to the persons intended to be relieved.12.Reference was made to a decision of their Lordships of the Privy Council in Renula Bose, Sreemati v. Rai Manmatha Nath Bose. That case concerned an assignee and no relief could be claimed against him by reason of sub-sec. (5) of sec.36. Emphasis was laid on the following passage in that judgment :It will be observed that the sub-section does not specifically, mention a judgment or decree as one of the matters which the Court may reopen, but it is abundantly clear that it is intended to give the Court that power. The drafting of the section is unfortunate and obscure, but inasmuch as by the second proviso to sub-se. 1 it is enacted that in the exercise of its powers the Court shall not do anything which affects any decree of a Court. Other than a decree in a suit to which this Act applies which was not fully satisfied by the 1st January, 1939, and as sub-sec. 2 contains a variety of provisions as to what the Court may and may not do on reopening a decree it is clear that the legislature intended that the power of reopening or reopening a transaction should extend to re-opening a decree obtained by a lender which had not been fully satisfied by 1st January, 1939, ........ Their Lordships are also unable to agree with the opinion of the learned Judge as to sec. 30 having no retrospective effect. In one sense this is true, because, as already pointed out in this judgment, all that the section by itself does not is to give the borrower a defence as to quantum when sued. But when that section is read with sec. 36 it appears to their lordships to be clear that the relief given by the section can be granted where relief under the Act is sought by a judgment-debtor in respect of a decree which had not been fully satisfied by 1st January, 1939, and which musts therefore, have been obtained before the Act came into force.This quotation does not help the contention of the Appellants; on the other hand, it negatives it, as indicated by the words under-lined by me. From this passage it cannot be inferred that the Privy Council ruled that no relief could be given regarding decrees passed after 1st September, 1940.t one time in the Calcutta High Court some doubts were expressed as to the true meaning of the proviso, but the matter was clarified in Sailabala v. Harish Chandra (1). It was there rightly held that sec. 36 (a) (1) of the Bengal Money Lenders Act applied to a case where the decree was passed subsequent to 1st January, 1939, in a suit to which that Act applied.