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2019 (4) TMI 793 - SC - Indian LawsMortgage by way of Conditional Sale - condition of agreement to sell - Section 58(c) of the Transfer of Property Act - Held that:- Keeping Section 58(c) side by side with Section 37(a) of the State Act, the conclusion is inevitable that the State legislature has intended to override the effect of proviso to Section 58(c) of the Transfer of Property Act by enacting Section 37(a) in the State Act. Section 37(a) was incorporated by way of an amendment in the State Act. Reading of Section 37(a) brings out the Legislative intent with unambiguous clarity and therefore the High court was right in relying upon Section 37(a) of the State Act to find that though it was by agreement dated 07.12.1959 which is a separate document that condition to make it a mortgage was incorporated it would not make any difference. Reliability on Section 37A of the Bengal Money-Lenders Act, 1940 - contention is that suit filed by Bhattacharya was not under the State Act - Held that:- A Suit for redemption is mentioned as suit to which Section 36 applies. Section 38 undoubtedly enables the borrowers to seek a direction for taking accounts - there is no reason to non-suit, the Bhattacharyas on this ground which is taken for the reasons which we have given. Last contention of appellant is that Section 37(A) contained under the State Act is repugnant to Central Law namely Section 58(c) of the Transfer of Property Act - Held that:- Money lending falls as entry (30) in the State List. Transfer of Property other than agricultural land falls in Entry 6 in the concurrent list. The State legislature in enacting Section 37(a) of the State Act, a law relating to money lending has made a law which is inconsistent and therefore, repugnant to the law made by the Parliament in Section 58(c) of the Transfer of Property Act - In this case proceeding on the basis that there is an inconsistency between Section 58(c) of the Transfer of Property Act and Section 37(A) of the State Act, in view of the assent given by the President, the matter falls under Article 254(2). Therefore, despite the inconsistency, Section 37(A) of the State Act will prevail in the State. Appeal dismissed.
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