9911796707
TMI Blog1945 (3) TMI 26X X X X Extracts X X X X X X X X Extracts X X X X ..... ime to time various amounts were paid to the mortgagee in respect of the sums due under the mortgage and that on 12th June 1935, in an action which he instituted against the mortgagors, a decree by consent was made in the action for some Rs. 4,58,058, the balance due to him under the mortgage, which together with the amount already paid would exceed double the amount originally advanced. On 17th September 1936, the Maharaja assigned the benefit of the decree and the benefit of the securities under the mortgage deed to the appellant who gave value therefore and on 2nd February 1937, she obtained the leave of the Court to execute the decree. On 1st September 1940, the Bengal Money-Lenders Act, 1940, came into operation, and thereupon responde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... made by consent is immaterial, as is also the fact that the amount was agreed. Nor do they think that the rate of interest in the present circumstances is material. It seems to them that the real question here is whether the Court can grant relief to a judgment-debtor for money lent against a bona fide assignee for value of the decree where both the decree and the assignment took place before the Act came into operation. 3. The Act No. 10 of 1940, was passed to regulate and control money-lenders and money-lending transactions in Bengal and applies to loans made by anyone and not only by professional money-lenders. Its main provisions so far as are material for present purposes are that maximum rates of interest are prescribed, and no bo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s twice the principal of the original loan... whether such loan was advanced or such amount was paid or such decree passed or such interest accrued before or after the commencement of this Act. The effect of this section is to afford a defence to a borrower as to the amount for which he is liable, and that is all that it does. It does not affect judgments already obtained, but merely provides that the amount of a judgment already obtained is to be taken into account in calculating the final amount for which a borrower may be liable. So, if for instance the original loan were for Rs. 1000 and the principal and interest were payable by installments, and a decree had been obtained for Rs. 500, not more than Rs. 1500 could be obtained under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsaction should extend to re-opening a decree obtained by a lender which had not been fully satisfied by 1st January 1939. Sub-section (5) however provides that nothing in this section shall affect the rights of any assignee or holder for value if the Court is satisfied that the assignment was bona fide and that he had not received the notice referred to in Clause (a) of Section 28, Sub-section (l). That is a notice which it is made obligatory on the lender to give to anyone to whom he assigns his debt. In their Lordships' opinion, the only right which the plaintiffs in this action had of re-opening the decree of 12th June 1935, was under this section. Had the decree not been assigned, they could have instituted an action for relief aga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n its language to afford protection to the rights of bona fide purchasers for value as is nearly always given in legislation of this description. Their Lordships are also unable to agree with the opinion of the learned Judge as to Section 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 is to give the borrower a defence as to quantum when sued. But when that section is read with Section 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 must therefore have ..... X X X X Extracts X X X X X X X X Extracts X X X X
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