KUMARKHALI BANKING CORPORATION LTD Vs. SURENDRA NATH SARKAR
LAWS(CAL)-1951-7-30
HIGH COURT OF CALCUTTA
Decided on July 13,1951

KUMARKHALI BANKING CORPORATION LTD. Appellant
VERSUS
SURENDRA NATH SARKAR Respondents

JUDGEMENT

R.P.Mookerjee, J. - (1.)This appeal is directed against an order passed by the Subordinate Judge of Nadia in certain proceedings which had been Initiated under. Section 36, Bengal Money-lenders Act.
(2.)The respondent-debtor had originally borrowed from the appellant certain sums of money on-executing a number of promissory notes. A portion of the interest due was paid, and the balance was secured by executing a mortgage on 9-4-1927, the interest stipulated being 12 per cent, per annum with six monthly rests. In February, 1931 the appellant, Kumarkhali Banking Corporation Ltd. obtained a decree for Rs. 6300 and odd being, the balance due under the mortgage. After various attempts the mortgaged property was sold for Rs. 5000 on 7-12-1939, in execution of the said-decree, the decree-holder being the auction purchaser. On 11-6-1940, the 'decree-holder-auction' purchaser sold that property to a third party for a consideration of Rs. 5800. On the passing of the Bengal Money-Lenders Act (x [10] of 1940) the debtor made an application under Section 36 of the said Act in August 1941 for the reopening of the decree, and previous transactions and for other reliefs. The decree was reopened by the Subordinate Judge. An appeal was taken to this Court, being. Appeal from Original Decree No. 148 of 1942. It was decided that on the reopening of the previous transactions the principal should be fixed at Rs. 3000. There was an order for remand for calculating and ascertaining the amount which was to be refunded by the creditor after taking; into account the amount which the debtor was entitled to get credit. 2a. Before the learned Subordinate Judge statements of account were placed showing the amounts paid by the debtor from time to time. In view of the fact that the mortgaged property, though originally purchased by the decree-holder, had been transferred to a third party, the debtor was not entitled to get back possession of the same. The learned Subordinate Judge, however, held that although the mortgaged property had been sold at the court sale to the decree-holder for Rs. 5000 but as the mortgagee-auction-purchaser had sold the property thereafter for Rs. 5800, the latter must be deemed to have received Rs. 5800 for the property; that higher amount has been taken into account for determining the amount of refund due to the judgment-debtor.
(3.)Before the mortgage suit had been filed and also before the property was sold at the court sale payments had been made towards the interest due the amount due being there calculated at the bond-rate which was higher than the maximum fixed under the Bengal Money-lenders Act. The learned Subordinate Judge in calculating the total liability of the debtor as on the date of sale did not give credit to the debtor towards the principal such amounts as were paid as interest but were in excess of the maximum amount as under the Bengal Money-lenders Act. An order for refund of Rs. 2299-7-7 with interest has accordingly been: made.


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