Chotilal Sowcar vs R. Jawantraj Sowcar

M. Anantanarayanan, Offg. C.J.

(1) This Letters Patent Appeal involves a question of considerable interest, which does not appear to have been the subject of judicial decision in

the precise form in which it has been raised, so far, concerning the interpretation of S. 2(3)(b) of the Usurious Loans Act 10 of 1918. The

preamble to this Act sets forth that ""it is expedient to give additional power to Courts to deal in certain cases with usurious loans of money or in

kind"". The expression ""suit to which this Act applies"" is interpreted in S. 2(3) as ""any suit"" to which S. 2(3)(a) or (b) applies, S. 2(3)(b) ""for the

enforcement of any security taken or any agreement........

(2) We are now in a position to describe the context of facts in which the argument has arisen. In consequence of certain acquisition proceedings

relating to S. No. 3477, there was a reference to court under Ss. 30 and 31(2) of the Land Acquisition Act, by the Collector of Madras, on the

ground of a dispute between a certain Jawantraj Sowcar, the owner of the property, who is the respondent herein, and Chotilal Sowcar, the

mortgagee in respect of the same property, who is the appellant. A sum of Rs. 26126-12-6 was deposited into court, and portions of this amount

were drawn by the respective claimants, upon a joint endorsement. The only question which was agitated before the learned Principal Judge in the

City Civil Court was that the interest stipulated in the promissory note embodied in the security (equitable mortgage by deposit of title-deeds), viz,

15 per cent annum compound, was excessive and usurious. The learned Judge, after referring to the arguments before him, determined the interest

at 14 per cent simple. An appeal was instituted from this decision by Jawantraj Sowcar, the owner of the property, before Venkatadri J, in which

the same issue, of very restricted scope was canvassed. Without deciding the particular ground of law, which is now urged before us, the learned

Judge directed, as the course most equitable compatible with the interests of justice, that the difference claimed as payable towards interest might

be disallowed. From this decision of Venkatadri J, the mortgagee (Chotilal Sowcar) has preferred the present Letters Patent Appeal.

(3) The issue that is involved may be tersely set forth as follows. As we have seen from the relevant provisions of the Usurious Loans Act, the

words descriptive of the proceeding to which the Act applies, are ""any suit"" and under S. 2(3)(b), it is clear enough that the language used by the

legislature would include an action of this character, a mortgage claim of a security upon Immovable property. But this is not a mortgage suit in the

formal sense. What was before court was a reference under Ss. 30 and 31(2) of the Land Acquisition Act. Indisputably. S. 73 of the Transfer of

Property Act will apply to this security, and, since the property has been acquired under the Land Acquisition Act, under S. 73(2), the mortgagee

shall be entitled to claim payment of the mortgage money, in whole or in part, out of the amount due to the mortgagor as compensation"". The real

point for our determination is whether the proceeding in court arising out of the reference can be justly or properly termed ""a suit"". If it is not a suit,

the argument is certainly conceivable that the Usurious Loans Act itself will not apply, and consequently, that no relief can be granted to the

mortgagor in the shape of reduction of the interest stipulated, though, otherwise, the rate might be usurious.

(4) Two points appear to arise for our determination, in the light of the arguments now advanced. The first is: in construing a beneficial enactment

of this kind providing relief to debtors under certain circumstances, with regard to a rate of interest that might be justly termed as oppressive, what

should be the perspective of approach by the court? Would the court be justified in construing the words of statutes so strictly, as exclude from its

ambit all proceedings which are not literally in character with the terminology employed, and comprised in it? The second is, do the precedents

admit of an enlarged sense or comprehension of the expression ''suit'', so as to justify the inference that the reference to a Court under S. 30 will

result in a proceeding which may be justly termed a ""suit""?

(5) Even before proceeding to the precedents, we would like to state that the perspective of approach should certainly be generous, a narrow or

very literal perspective will not be in consonance with the preamble to the Usurious Loans Act that we have earlier set forth, or the principles of

construction of statutes of this type, having in mind the probable intention of the legislature. As observed in Maxwell on Interpretation of Statutes,

11th Edn, page 66, S. 2.

It is said to be the duty of the judge to make such construction of a statute as shall suppress the mischief and advance the remedy. Where the

usual meaning of the language falls short of the whole object of the legislature, a more extended meaning may be attributed to the words, if they are

fairly susceptible of it. The construction must not, of course, be strained to include cases plainly omitted from the natural meaning of the words

(6) Having this perspective in mind, if we approach the matter, we shall at once see that, in the available precedents, an expression like ""suit"" has

been given either a more extended meaning, or a more restricted interpretation, as the context, and the intention of the Legislature in enacting the

particular statute, appeared to the court to require. The principle of the wider meaning was stated very early by Peacock C. J in Hurro Chunder

Roy v. Shooradhonnee Debia. (1898) 9 Suth WR 402. The learned Chief Justice observed: ""The word ''suit'' does not necessarily mean an

action..... Any proceeding in a court of justice to enforce a demand is a suit

(7) There have been decisions of this court to the effect that a ''suit'' according to Section 48 C.P.C must commence with a plaint and this relatively

restricted interpretation appears in certain of the cases to which our attention has been drawn. One such case in Venkata Chandrappa Nayanivaru

v. Venkatarama Reddi, ILR(1899) Mad 256. The learned Judges observed that a proceeding which is capable of terminating in a decree or order

having the force of a decree, cannot, on that ground alone, be deemed to be a suit within the meaning of the Code, if it had not been commenced

with a plaint. In Prem Nath L. Ganesh Dass Vs. Prem Nath L. Ram Nath and Others, the expression ''suit'' has been interpreted as a proceeding in

a Court of Justice for the enforcement of a right, involving a legal proceeding of a Civil kind. In Abdullah Ashgar Ali v. Ganesh Das, AIR (20)

1933 PC 63 the word ""suit"" again, has been interpreted as a civil proceeding instituted by the presentation of a plaint. In A. Mahalinga Kudumban

and Others Vs. Theetharappa Mudaliar, , there are references to the same issue, but what was actually decided was that the decision of a Court

u/s 30 of the Land Acquisition Act is a decree within the meaning of Section 2(2) C.P.C., and not an award. Since, under the Civil Procedure

Code, the decree u/s 2(2) has been defined as a formal expression of adjudication, which conclusively determines the rights of parties on matters in

controversy, ""in the suit"", it could conceivably be maintained that a proceeding which terminates in a decree per se, in the technical sense, would be

a suit.

Other decisions to which our attention has been drawn are relatively wide of the matter strictly in issue, for, either they relate to other enactments,

or to the character of a decree. We might cite, for instance, Chikkanna Chettiar alias V.S. Nanjappa Chettiar Vs. V.S. Perumal Chettiar and

Another, and (Delhi) Venkatarama Doss Pantulu Vs. (Delhi) Bheema Rao, which relates to a decision u/s 84(2) of the Hindu Religious

Endowments Act and such decisions under the Arbitration Act as Moradhwaj Vs. Bhudar Das, and Prem Nath L. Ganesh Dass Vs. Prem Nath L.

Ram Nath and Others, earlier referred to. In Farkhundali Nannhay Vs. V.B. Potdar and Another, an interesting observation can be found to the

effect that the word ""suit"" is a term of art, and ordinarily means a proceeding instituted in a civil court by the presentation of a plaint.

(8) But this does not resolve the difficulty by any means, for, in a certain sense, it begs the question. We have to consider the word ""plaint"" and we

find that, in Jowitt''s dictionary of English law, that is defined as ""the statement in writing of a cause of action."" If that concept has to apply, and not

merely a specific provision of the processual law, the proceedings resulting from the reference u/s 30 would well be held a suit prefaced by the

presentation of a plaint, for, admittedly, the statements of claim have to be filed into Court, upon which the adjudication proceeds. In our view, the

catena of decisions that we have cited above, will appear to justify both a broader interpretation, and a more restricted interpretation of an

expression like ""suit"" depending upon the context of occurrence, the nature of the statute, and the intendment of the Legislature, as can be gathered

from the preamble to the statute and other permitted means. Similarly, even the word ''plaint'' may admit of two kinds of interpretation; in relation

to particular provisions of the processual law, it may mean a statement of claim made in civil court, in accordance with these provisions. But it may

well embrace a wider category of instances, as the definition given by us from Jowitt''s Dictionary of English law could appear to justify.

In any event, we are quite unable to see why the word ""suit"" as occurring in Section 2(3) of the Usurious Loans Act, should be interpreted in a

restrictive sense, as a proceeding which has commenced with a plaint under the Civil Procedure Code. Even u/s 26 C.P.C., it is noteworthy that

every suit is to be instituted by the presentation of a plaint, ""or in such other manner as may be prescribed"". The wider connotation of the

concluding words of Section 26 has been noted in Balram Singh v. Dudhnath, AIR 1949 All 100 which held that a proceeding u/s 12 of the U. P.

Agriculturists Relief Act is a proceeding in a ""suit"" before a civil court within the meaning of Section 21 of the Arbitration Act, and that the

Arbitration Act applies to such proceedings. Hence, whether viewed in the light of the available case law, or in the true perspective of approach to

the expression used in a beneficial statute, the object of which was to relieve debtors in all civil proceedings or proceedings of a civil character,

from the burden of oppressive rate of interest, we are fully satisfied that the proceeding in a court following a reference u/s 30 would be one in

which the provision of this Act could be invoked by the concerned party, treating that proceeding as one to which Section 2(3) of the Act applies.

From another point of view, it could well be maintained that the statement of claim by the concerned party, which has to be necessarily filed into

court, following the reference u/s 30 partakes of the character of a plaint and could be brought within the scope of that expression. Accordingly,

we are of the view that the Act can be invoked by the debtor (mortgagor) to claim relief from the excessive rate of interest appearing in the bond.

(9) We do not think it necessary to discuss cases upon the issue whether the particular rate of interest specified in this instrument is usurious and

excessive, or otherwise. It is true that both the parties were members of the Marwari community, and at arm''s length, as far as we can judge. But

that does not mean that, in a contract or bargain of this kind, the debtor is not relatively at a disadvantage, and, what would be a usurious or

excessive rate of interest would depend on the facts of each case, the value of the security offered, the availability of money in the open market,

and many other factors which need not be particularised here. We are fully satisfied that the rate of interest (15 per cent compound with yearly

rests) is excessive, and that the interests of justice require the award of relief to the debtor (the mortgagor). We find from the record that, on 16th

March 1959 a sum of Rs. 994 alone was further due from the mortgagor. We think that the course which would best subserve the interest of

justice, on the facts of this particular case, would be the direction that this will be the decretal amount now, carrying no interest from 16th March

1959 till today. From today onwards, this will carry the usual interest, viz, 6 per cent per annum. The suit is accordingly decreed with

proportionate costs.

KI/JHS/R.G.D.

(10) Order accordingly.