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TMI Blog1949 (3) TMI 34X X X X Extracts X X X X X X X X Extracts X X X X ..... he loan to which the application of the respondents related was a commercial loan to which the Act did not apply; and secondly, that the suit in which the application of the respondents was made was not a suit to which this Act applies as defined by the Act, and consequently that the respondents were not entitled to any relief under the Act. 3-4. The material facts are these: On 6th January 1925, the respondents or their predecessors in title executed a registered karbarnama, or bond for obtaining loans for business, in favour of the appellant for securing loans up to a sum of ₹ 25,000, The material provisions of this document will be referred to later. The appellant on 15th August 1930, instituted a mortgage suit, No. 198 of 1930, claiming a sum of R?. 40,600 and asking for the enforcement of the mortgage security. On 5th October 1931,' a compromise decree was passed in the Baid suit for a total sum of ₹ 45,825.8-0 with interest payable in sixteen installments, and it was provided that on failure to pay one installment the whole of the outstanding sum would be due and recoverable with interest at for per cent per annum by sale of the mortgaged properties, an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spect 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. Section 30. Notwithstanding anything contained in any law for the time being in force, or in any agreement, (1) no borrower shall be liable to pay after the commencement of this Act-- (a) any sum in respect of principal and interest which together with any amount already paid or included in any decree in respect of a loan exceeds twice the principal of the original loan, (b) on account of interest outstanding on the date-up to which such liability is computed, a sum greater than the principal outstanding on such date, (c) interest at a rate per annum exceeding in the case of: (i) unsecured loans, ten per centum Simple. (ii) soured loans, eight per centum simple, whether such loan was advanced or such amount was paid, or such decree was passed or such interest accrued . before or after the commencement of this Act; (2) no borrower shall, after commencement of this Act, be deemed to have been lia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de in revision to the High Court at Calcutta, and such application was heard on 18th November 1942. The learned Judges held, disagreeing with the learned Subordinate Judge, that the loan was not a commercial loan. They agreed with the learned Subordinate Judge in thinking that the suit was one to which the Act applied, basing their opinion largely on the fact that the said application under Rule 100, order 21, was outstanding on 1st January 1939. In the result they made the rule absolute, set aside the order of the Subordinate Judge and sent the case back to him in order that the decree might be re-opened in accordance with the directions given by the Court. No objection to these directions has been raised before the Board. 10. The preliminary objection taken by the respondents is that leave to appeal to the Board was granted by the High Court under Section 109(a), Civil P.C., and that that sub-section only relates to appeals from decrees or final orders passed on appeal. The respondents contend that the Sub-section does not apply to orders passed in revision, and they point out that under Section 115 a power of, revision only arises in cases in which no appeal lies, so that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rightly. Mr. Pringle maintained that the learned Subordinate Judge had jurisdiction to decide that the loan was a commercial loan, and in so doing he did not act illegally or with material irregularity, and the High Court had no power to interfere in revision merely because it disagreed with his decision. So far Mr. Pringle is on safe ground, but the learned Subordinate Judge, having held that this was a commercial loan, was bound to go on to consider what effect that decision had upon the respondents' application, and, since the Act in terms does not apply to commercial loans the learned Judge was bound, upon his finding, to dismiss the application without determining whether or no the respondents brought themselves within in 30 and 36 of the Act as they claimed to do. in so doing, on the assumption that his decision [that the loan was a commercial loan was erroneous, he refused to exercise a jurisdiction vested in him by law, and it was open to the High Court to act in revision under Sub-section (b) of Section 115. There have been a very large number of decisions of Indian High Courts on Section 115, to many of which their Lordships have referred. Some of such decisions prom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upplied from ourselves, and so the business is not running well. Hence, we execute this karbarnama (i.e. bond for loan transactions for business) on mortgage of immovable properties to carry on money-lending business to the extent of ₹ 25,000.... The appellant relies strongly on the description of the loan as a bond for obtaining loans for business, but such a description is not inconsistent with a part of the loan being required for other purposes. The learned Judges of the High Court considered that on the construction of the document it was clear that the loan was required for business and other purposes, and that therefore the money was not advanced solely for business purposes. The appellant contends that the recital that the money was required for business and other expenses and that they had not got the money was merely a recital of historical facts explaining why the business was not running well, and does not qualify the purpose for which the loan was obtained, which appears from its description as karbarnama. Their Lord-ships are not able to accept this view. They agree with learned Judges of the High Court in thinking that the reference to other expenses can ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plication in execution was disposed of, the decree-holder could apply for a personal decree under Order 34, Rule 6, and that the suit was pending so long as such right was open. For this proposition he relies on a decision of the High Court at Calcutta Muhammad Kazim Ali v. Ramesh Chandra Sil A.I.R. (34) 1947 Cal. 270. Mr. Pringle for the appellant conceded, rightly as their Lordships think, that the suit was pending so long as there was a right to obtain a personal decree which was not barred under Section 181, Limitation Act, but he contended that the compromise decree of 5th October 1931 itself contained a personal decree, and there could therefore be no right to obtain such a decree in the future. For some unexplained reason the compromise decree has not been printed in the re-cord, but an office copy with an English translation has been lodged with the Registrar, and their Lordships have referred to it. The decree was passed in terms of the compromise between the parties. The compromise states that the decree shall be considered to be the final decree in the suit and provides that on failure to pay an installment the plaintiff shall be competent to realise the amount due by au ..... X X X X Extracts X X X X X X X X Extracts X X X X
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