BHAGWAN DAS MALL Vs. GAJADHAR RATHI
LAWS(CAL)-1976-12-9
HIGH COURT OF CALCUTTA
Decided on December 10,1976

BHAGWAN DAS MALL Appellant
VERSUS
GAJADHAR RATHI Respondents


Referred Judgements :-

PROBHABATI MITRA V. ANIL KUMAR DEY [REFERRED TO]
PADMA KAMINI DEVI V. NABA KUMAR SINGH DUDHURIA [REFERRED TO]
ORAMBA SUNDARI DASI VS. ISHWAR GOPAL JIEU [REFERRED TO]
SRIMATI RENULA BOSE VS. RAI MANMATHA NATH BOSE [REFERRED TO]
SURESH CHANDRA MUKHERJEE VS. LAL MOHUN CHATTERJEE [REFERRED TO]
RAJA KAMALA RANJAN ROY VS. BEPIN BEHARI SADKHAN [REFERRED TO]
ACCOWRIE MUKHERJEE VS. SAILENDRA MOHAN DEY [REFERRED TO]


JUDGEMENT

- (1.)This revisional application under Article 227 of the Constitution of India is directed against the judgment and order dated March 23, 1973 passed in Misc. Appeal No.9 of 1971 by the District Judge, Purulia affirming the judgment and order dated January 25, 1971 passed by the Subordinate Judge, Purulia in Misc. Case No.10 of 1970.
(2.)The brief history of the case is that the opposite party Gajadhar Rathi approached to the petitioner for sale of a shop room. The price of the said shop-room was settled at Rs.8000/- and a deed of sale was executed by the opposite party in favour of the petitioner on January 8, 1965 on receiving the entire consideration money. Thereafter on 15th of March, 1965, the opposite party approached the petitioner and requested him to execute an agreement to reconvey the said property to him if he would pay back the consideration money whereon the petitioner executed an agreement in favour of the opposite party agreeing to reconvey the property to him if the opposite party would pay Rs.8500/- by the end of December, 1969. On the same day an indenture of lease was also executed by the petitioner in favour of the opposite party permitting the opposite party to remain in possession of the suit premises as a tenant and to carry on his cloth business therein on payment of monthly rent of Rs.70/-. The opposite party subsequently filed an application under S. 36 of the Bengal Money Lenders Act which was registered as Misc. Case No.10 of 1970 in the Court of the Subordinate Judge, Purulia alleging inter alia that the said transaction evidenced by the deed of sale, the agreement to reconvey and the indenture of lease was, in fact, a loan transaction and not an out and out sale and the stipulated amount of Rs.70/- payable as rent per month was, in fact, a payment on account of interest on the said amount. It was also stated therein that the plaintiff was required to pay an enhanced amount of Rs.8500/- by December, 1969 to secure payment of rent for the months of January and February of 1969. It has been further stated that the plaintiff required money in order to meet the marriage expenses of his daughter and the sum of Rs.8000/- was advanced by the petitioner as loan. It has also been stated therein that the valuation of the property was much above Rs.8000/- and he was all along in possession of the property and so prayed for relief under S. 36 of the Bengal Money Lenders Act, 1940.
(3.)The petitioner contested the said Misc. Case on filing a written objection denying all material allegations made in the said application and stating specifically that the said transaction was an out and out sale and not a loan in substance and as such the Misc. Case was liable to be dismissed.
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