K.C.Das Gupta, J. - (1.) The respondent Premraj Lala filed an application under Section 38 of the Bengal Moneylenders Act in the court of the Subordinate Judge, Howrah. In that application it was stated that the original loan of Rs. 500/- with all interest accrued thereon at the statutory rate had been fully satisfied from the income. The prayer, however, was that an account be taken of the loan described and a declaration of the amount, if due, if any, be made upon the loan. The present appellant having raised an objection to the maintainability of the application the learned Subordinate Judge decided that the applicant was not entitled to maintain the petition in view of his case made in paragraph 7 of the petition that the loan had been satisfied. He accordingly dismissed the case as not maintainable. Against this Premraj Lala, the applicant, preferred an appeal to the District Judge, Howrah. The learned District Judge was of opinion that the application was maintainable and in that view he allowed the appeal and remanded the case to the trial court for disposal on merits according to law.
(2.) On behalf of the appellant two points have been raised. First, it was contended that the learned District Judge was wrong in his view of law that an application was maintainable. Secondly, it is contended that in any case, an appeal did not lie against the order passed by the learned Subordinate Judge, the District Judge acted without jurisdiction in hearing and allowing the appeal.
(3.) On the first point, I am clearly of opinion that the appellant's contention cannot be accepted. Section 38 provides that any borrower may make an application to the proper court which is indicated in the section itself for taking accounts and for declaring the amount due to the lender. Such application has to be in the prescribed form and accompanied by a fee. It provides that thereafter a notice shall be issued by the Court on the lender and after this the Court shall take an account of the transactions and shall "declare the amounts, if any, (a) payable and already due, (b) payable but not yet due by the borrower to the lender whether as principal or interest or both". It was argued by Mr. Hemendra Kumar Das on behalf of the appellant that the scheme of the law here clearly is that the Court can give a declaration only of some amount which is payable and already due or which is payable but not yet due and that it cannot declare that no amount is due. The scheme of the law, as I understand it, is that an opportunity should be given to the borrower to have his accounts settled and if on such accounting something is found due, that is to be declared. It nothing is found due, that fact is also to be declared. The provision in Sub-section (1) that the application is "for taking accounts and for declaring the amount due to the lender" clearly includes, in my judgment, the provision of declaring that nothing is due. That this is the scheme is also clear from the use of the words "if any" in Sub-section 2. Reading the Section 38 as a whole, and giving the words used their plain meaning to understand the intention of the Legislature, I am of opinion that the intention was that on such an application being made the Court will have to take accounts and then declare either that no amount is due, or the sum that is due. To take any other view will be to defeat the scheme of the law without any justification for the same in the words used by the Legislature.;