Soshi Kumar Banerjee and Others vs A.W. Hill and Others

Harries, C.J.—A Rule was issued calling Upon the opposite parties to show cause why the records, of a certain suit should not be transferred to this. Court for the decision of a constitutional point involved in the suit namely whether Section 30(1)(a)(b) of the Bengal Money Lenders Act is ultra vires the Constitution.

I do not think that the records should be transferred because though a constitutional point might arise in a proper case, I do not think it can be said to arise in this case.

The proceedings giving rise to this application were instituted many years ago. They were dismissed by the trial Court which held that the suit was not maintainable. That decision was reversed by this Court and the view of this court was upheld by ,the Federal Court and the trial court was directed to proceed to hear the suit on its merits. All this occurred long before the Constitution came into force.

Even assuming that these provisions of the Bengal Money Lenders Act have become ultra vires by reason of the Constitution, I do not think that that could affect the rights of the parties in this suit which was instituted long before the Constitution came into force. If these provisions have been repealed, it would not have affected the rights of the parties and I do not think that the petitioners in this case are in a stronger position because the provisions might have since the Constitution become ultra vires. It is unnecessary to consider whether or not there is a constitutional point or point of substance. All we need say in this case is that the point does not arise having regard to the facts and history of this particular case. That being so, the Rule is discharged with costs, the hearing fee being assessed at five gold mohurs.

Sarkar, J.

I agree.