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Judgment
P. K. Goswami, C. J.
This Miscellaneous First Appeal is directed against the judgment of the District Judge, Cachar whereby hp allowed the prayer of the Assam Financial Corporation, Respondent No. 1, (hereinafter "the Corporation") to enforce a registered mortgage u/s 31 of the State Financial Corporations Act, 1951 (briefly ''the Act'').
The facts briefly are as follows: The Corporation is established u/s 3 of the Act for carrying on business in the State of Assam with Head office at Shillong. Respondent No. 2 Messrs. Kalimpong Properties Limited borrowed a sum of Rs. 7,50,000/- from the Corporation by executing a registered mortgage deed on 15th May, 1963 and the respondents 3 to 6 stood as guarantors jointly and severally. The appellant, Chargola Tea Company Limited (hereinafter ''the Company'') is the transferee from the respondent No. 2 and is now admittedly answerable for the mortgage debt. The mortgage deed stipulated interest at the rate of 7 1/2 per cent per annum. It was further stipulated that in case of breach of any of the conditions of the loan, the entire amount due on account of the loan was at once to be repayable by respondents 2 to 6 jointly and severally. The said liability by transfer, has now devolved upon the appellant, which is the admitted position. It is also admitted that a default in payment of the stipulated installment has been made and when the debtors failed to make payment, even after notice, the Corporation filed an application u/s 31 of the Act before the District Judge to enforce the terms and conditions of the deed of mortgage of 15th May 1963, and for the realisation of Rs. 6,79,078.03, together with future interest. On a prayer of the Corporation, orders were passed in terms of Section 31 (1) of the Act.
The appellant admitted the claim but contended that the application was not maintainable on certain legal grounds raised before the Court. One witness was examined on behalf of the Corporation and the Company did not examine any witness. The witness for the Corporation admitted receipt of Rs. 25,000/- after filing of the application. It was contended before the District Judge that the application was not properly filed u/s 31 of the Act; secondly, it was contended that u/s 4 of the Assam Money Lenders'' Act. 1934, charging of compound interest was illegal and hence the application should be rejected. The learned District Judge rejected both the contentions. Hence this appeal.
Mr. J. P. Bhattacharjee the learned counsel for the appellant, confines his submission before us to only one point. He submits that u/s 4 of the Assam Money-Lenders'' Act, which applies to the Corporation, any contract made before or after the commencement of that Act for the loan of money by a money-lender shall be illegal in so far as it provides directly or indirectly for the payment of compound interest. To the identical objection before the District Judge, it was submitted by the Corporation that u/s 2 clause (3) (c) a loan advanced by Life Insurance Corporation of India, Financial Corporation of India or any other Corporate body is exempted from the provisions of the Money-Lenders'' Act. It is submitted that the loan advanced by the Corporation in this case does not therefore, attract, the provisions of the Assam Money-Lenders'' Act. The District Judge repelled an objection of the Company that that clause is not retrospective.
Mr. Bhattacharjee, however made a new submission. According to him, the Assam Money-Lenders'' Act is a Special Act which has been promulgated by the State Legislature in terms of Entry 30 of List II of the Seventh Schedule. Entry 30 is in the following terms:-
"Money-lending and, money-lenders; relief of agricultural indebtedness."
The Corporation Act is passed according to him, under Entry 43 of List I of the Seventh Schedule. Entry 43 is in the following terms:-
"Incorporation, regulation and winding up trading corporations including banking, insurance and any financial corporations but not including co-operative societies."
It is strenuously urged that the Money-Lenders'' Act being a competent State Law Under the aforesaid Entry 30, the provisions of such a law must prevail even in the case of Corporation, the source whereof is Entry 43 of List I of the Seventh Schedule. In order to appreciate the submission, we have to go through the provisions of the Corporation Act to find out the object and the purpose of the Act and the scheme disclosed therein. We may, therefore notice some of the material provisions of the Act. As the preamble shows, the Act is to provide for the establishment of State Financial Corporations. Section 25 recites the business which the Financial Corporation may transact. Amongst other things, by Section 25 (1) of the Act, as amended by Act No. 6 of 1962. "The Financial Corporation may, subject to the provisions of this Act carry on and transact any of the following kinds of business, namely:-
"(g) granting loans or advances to, or subscribing to debentures of, an industrial concern, repayable within a period not exceeding twenty years from the date on which they are granted or subscribed to as the case may be:-
x x x x x
(h) generally, the doing of such acts and things as may be incidental to, or consequential upon, the exercise of its powers or the discharge of its duties under this Act."
By Section 27 (1), the Corporation may impose such conditions for protecting the interests of the Financial Corporation and securing that the accommodation granted by it is put to the best use by the industrial concern. By Section 30. "Notwithstanding anything in any agreement to the contrary the Financial Corporation may by notice in writing, require any industrial concern to which it has granted any loan or advance to discharge forthwith in full its liabilities to the Financial Corporation-
x x x x x
(b) if the industrial concern has failed to comply with the terms of its contract with the Financial Corporation in the matter of the loan or advance:
x x x."
By Section 48 (1), "the Board may, after consultation with the Reserve Bank and with the previous sanction of the State Government, make regulations not inconsistent with this Act and the rules made thereunder to provide for all matters for which provision is necessary or expedient for the purpose of giving effect to the provisions of this Act."
"(2) In particular, and without prejudice to the generality of the foregoing power such regulations may provide for
x x x x x
(g) the conditions which the Financial Corporations may impose in granting loans or advances."
It is contended that ''money-lending'' is an item of the Entry which is exclusively within the competence of the State and therefore any legislation with regard to ''money-lending'' must prevail if there is no provision therein repugnant to the Central Act. We are, however, unable to accept this submission. The very fact that u/s 25 (1) (g), the Corporation may grant loans to industrial concerns, it is implicit that there is a power to charge interest as agreed upon between the parties. Besides, the provisions of Sections 27 and 30 (b) and regulations made u/s 48 (2) (g) clearly disclose a scheme permitting charging of interest and imposing of such terms as may be agreed upon between the parties at the time of advancement of the loan. Having made these provisions Parliament has taken care to insert Section 46-B, by Amendment of the Act in 1956, which reads:
"The provisions of this Act and of any rules or orders made thereunder shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in the memorandum or articles of association of an industrial concern or in any other instrument having effect by virtue of any law other than this Act, but save as aforesaid, the provisions of this Act shall be in addition to and not in derogation of any other law for the time being applicable to an industrial concern."
If there is any creeping doubt in the matter that is concluded by insertion of Section 46-B. Interest is heart of the matter in advancement of loans and that would be even incidental to the power given to the Corporation under the Act to advance loans and to enforce other terms as may be agreed upon.
Mr. Bhattacharjee drew our attention to a decision of the Privy Council in AIR 1947 60 (Privy Council) , which is referred with approval by the Supreme Court in Chaturbhai M. Patel Vs. Union of India (UOI) and Others, . We may, therefore quote the observations of the Supreme Court in the above decision.
"In every case where the legislative competence of a legislature in regard to a particular enactment is challenged with reference to the entries in the various lists it is necessary to examine the pith and substance of the Act and if the matter comes substantially within an item in the Central List it is not deemed to come within an entry in the Provincial list even though "the classes of subjects looked at singly overlap in many respects". It is within the competence of the Central legislature to provide for matters which may otherwise fall within the competence of the Provincial legislature if they are necessarily incidental to the effective legislation by the Central legislature on a subject of legislation expressly within its power".
x x x x x
"In the interpretation of the scope of these items the widest possible amplitude must be given to the words used and each general word must be held to extend to ancillary or subsidiary matters which can fairly be said to be comprehended in it." As has been observed by Sir Maurice Gwyer C. J. dealing with items in the Lists in AIR 1941 47 (Federal Court) .
"It must inevitably happen from time to time that legislation, though purporting to deal with a subject in one list touches also on a subject in another list, and the different provisions of the enactment may be so closely intertwined that blind adherence to a strictly verbal interpretation would result in a large number of statutes being declared invalid because the Legislature enacting them may appear to have legislated in a forbidden sphere."
The Supreme Court also observed in The State of Rajasthan Vs. G. Chawla and Dr. Pohumal, as follows:-
"It is equally well settled that the power to legislate on a topic of legislation carries with it the power to legislate on an ancillary matter which can be said to be reasonably included in the Power given."
While legislating within its competence in terms of an entry, Parliament can touch the fringe of another entry and as the rule is of the pith and substance of the matter and calls for liberal interpretation, no constitutional objection can be advanced against the present Act which does authorise imposing of terms and conditions of advancement of loan which would clearly include charging of interest, simple or compound. The Assam Money-Lenders'' Act cannot therefore, be called in aid to curtail that power which is conferred under the Corporation Act.
For the foregoing reasons and particularly in view of Sec. 46-B of the Act. Section 4 of the Assam Money-Lenders'' Act cannot be advanced as a legal bar to the power of the Corporation to charge compound interest. Besides, the Corporation Act can be traced not only to Entry 43, but also to Entry 45 of List I of the Seventh Schedule, namely ''Banking''. There is therefore, no substance in the contention that Parliament is not competent to enact the Corporation Act, permitting, as it does, charging of interest on the ground that it is a matter relating to money-lending and exclusively within the competence of the State Legislature under Entry 30 of List II of the Seventh Schedule. The submission of Mr. Bhattacharjee, therefore, is of no avail.
In the view we have taken it is not necessary to go into the question whether Section 2, Clause 3 (c) of the Assam Money-Lenders'' Act is retrospective or not.
In the result, the appeal falls and is dismissed. We will, however, make no order as to costs.
Pathak, J.
I agree.