TMI Blog2019 (4) TMI 793X X X X Extracts X X X X X X X X Extracts X X X X ..... ies. 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. - CIVIL APPEAL NO(S). 8793-8794 OF 2013 - - - Dated:- 4-4-2019 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (hereinafter referred to as Bhattacharyas and who are the defendants in the suit filed by Atul Chandra Das and plaintiffs in O.S. No. 1271/1980) were given absolute rights, in terms of the will executed by Bijoy Kr. Ghosal, the owner of the property. They set up the case that a sum of ₹ 8000/- came to be borrowed from Bholanath on 28.9.1959. To secure ₹ 8000/- Bhattacharyas mortgaged by conditional sale, on 28.11.1959 the plaint schedule property in favour of Bholanath. In order to give effect to mortgage an agreement for sale was entered into on 07.12.1959 with Aboya Devi (since deceased wife of Late Ashutosh Bhattacharya and deceased Late Karuna Bhattacharya, the wife of first plaintiff in a title suit and Late Smt. Rama Devi, daughter of Annapurna Devi) who were the nominees of the mortgagors for the agreement to sell of the house on payment of a sum of ₹ 10,000/- which was settled to be the mortgage money, no rate of interest having been stipulated. Two years was agreed to be the period of redemption of mortgage. The title deeds were to be kept with Bholanath by way of further security. The agreement which is referred to by Atul Chandra Das as an agreement fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es of the said Bholanath Auddya by purchase. (iii) declaration that the right of redemption of the said mortgage by conditional sale is still subsisting and the plaintiffs are entitled to redeem the said mortgage on deposit of the mortgage money amounting to ₹ 8500/- in court or such amount as may be determined by the Court or payment of the same to who ever may be declared to be the mortgages or mortgagees. (iv) Declaration that the agreement dated 15.08.60 between the said Bholanath Auddya since deceased and the defendant No. 1 for sale of the property described in the schedule A below is a collusive and fraudulent agreement and not enforceable in law. (v) Declaration that the decree dated 30.11.77 of the Hon ble High Court at Calcutta in Suit No. 171 of 62 for specific performance of contract for the sale of the property described on the schedule A below was obtained by practising fraud upon the court by the defendant No. 1 and the said Bhola Nath Auddya since deceased collusively. (vi) declaration that the said decree of the Hon ble High Court at Calcutta and the conveyance executed thereunder on 26.3.79 by the Registrar Original Side of the said H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tul Chandra Das was dismissed and the suit filed by the Bhattacharyas came to be decreed. As already noticed, the High Court has confirmed the said decree. 4. We heard the learned counsel for the appellant and learned counsel for the Bhattacharyas. 5. The learned counsel for the appellant would submit before us that the courts below have proceeded to find that the sale dated 28.11.1959 executed by the previous owners, namely the defendants in favour of Bholanath was a mortgage without noticing that such a finding will be in the teeth of the proviso to Section 58(c) of the Transfer of Property Act. In other words, in order to constitute a mortgage by way of conditional sale, the proviso to Section 58(c) of the Transfer of Property Act mandates that the condition of agreement to sell which is what is relied upon by the Bhattacharyas to make Bholanath a mortgagee must have been incorporated in one document. In this case on the other hand, there is no dispute that the Bhattacharyas relied upon a separate and distinct document namely an agreement to sell executed by Bholanath in favour of the Bhattacharyas dated 7.12.1959. There is no condition for reconveying the property contain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nding anything to the contrary contained in the proviso to the said sub-section, the transaction shall always be deemed to be a mortgage by a conditional sale and the mortgagee a mortgagee by conditional sale for the purpose of the said sub-section. 10. 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. We may also notice that despite the sale deed dated 27.11.1959, the Bhattacharyas continued to be in possession of the plaint scheduled property and it has been found that they paid the taxes. It is further found that the market value of the property would ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under Section 38 of the said Act, even then the plaintiff cannot succeed in her contention. The requirements of Section 38 have not been complied with. There is no prayer for taking account and for declaring the amount due to the lender. No borrower can call in and the procedure prescribed under Section 38 unless he asks for account and determination of the amount due to the lender. Even if the loan is secured, the borrower need not ask for redemption. He will be at liberty to file an application for determination only of the amount due from him. This was not done by the plaintiff, who claims to be the successor-in-interest of the borrower. On the contrary, the plaintiff has asked, inter alia, for the following reliefs in the plaint:- (a) For a decree declaring the aforesaid transaction is a loan transaction and declaring that the aforesaid deed of sale is an ostensible deed of sale as a security to repayment of the said loan is repaid. (b) For a decree of permanent injunction restraining the defendant No. 1 from claiming any right of ownership in the property in suit by virtue of the aforesaid deed of sale. Having regard to the provisions of Ss. 36 and 38 of the said A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ommencement of this Act. 14. Section 36 comes under the heading Reopening of transactions . It deals with the power of the Court to exercise all or any of the various powers which are mentioned therein. Sub Section 4 of Section 36 reads as follows:- 36(4). This Section shall apply to any Suit, whatever it forms may be, if such suit is substantially one for the recovery of a loan or for the enforcement of any agreement of security in respect of a loan or for the redemption of money such security. 15. It will be noticed 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. 16. We have noticed the relief which was sought in the suit which was considered by the learned Single Judge in Swarnalata Tat AIR 1984 Calcutta 130. In fact, Court in the said case could not find a mortgage proved also. The reliefs on the other hand in the suit filed by Bhattacharya include reliefs relating to redemption in the form it is asked for. In fact, no issue in this regard was taken before the Trial Court. We see no reason to non-suit, the Bhattacharyas on this ground which is ta ..... X X X X Extracts X X X X X X X X Extracts X X X X
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