SMT. DAYAWATI AND ANOTHER versus INDERJIT AND OTHERS

ill ..

sm. DAYAWATI AND ANOTHER

INDERJIT AND OTHERS

I anuary 14, 1966

[K. SUBBA RAO, M. HIDAYATULLAH AND R. S. BACH>.WAT, JJ.l,

UsurloW1 Loans Act, 1918 (10 of 1918), s. 3, as amended bys. 5 of Punjab Rellej oj Indebtedness Act-Section 6 of latter Act making s. S applicable to "all suitJ pending or to be instituted after the COrnm<!lfC<-ment of this Acf'-Appeal filed against judgment in suit-Whether suit 'pending' within meaning of s. 6. Interest in excess of 7! per cent was awarded to the appellants by the trial court in mortgage suit against the respondents. The respondents filed before the High Court, wbere an appeal by them against the decree of the trial court was pending an application under s. 3 of the Usurious Loans Act, 1918 as amended by s. S of the Punjab Relief of Indebtedness Act. They claimed, by virtue of the latter provision, that interest in excels of 7i per cent could not be awarded in the suit. The Hilh Court having accepted the contention, the appellants came to this Court by special leave and contended that an appeal having been filed against the trial court's judgment in the suit, the said suit could not be said to be pending' within tho meaning of s. 6 of the Punjab Act on the relevant date, and therefore s. S would not apply .

HELD: (i) Tho word 'suit' includes an appeal from the judgment in the suit.

The only difference between suit and an appeal is that an appeal "only reviews and corrects the proceedin8" in cause already constituted but dO<lS not create the cause." In the present Act the intention is to g;..., relief in respect of excessive interest in suit which is pendina and preliminary decree in suit of this kind does not terminate the suit. The appeal is part of the cause because the preliminary decree which emerges from the appeal will be the decree, which can become final decree. (281 D-F)

(ii) The words of s. 6 speak of suit pending on the commencement of the Act and it means live suit whether in tne court of first instance or an appeal court where the judgment of ·the court of first instance is being considered. It only excludes those suits in which nothina further needs to be done in relation to the rights and claim litigated, because an executable decree which may not be reopened is already in existence. The decision of the High Court was right in applying s. 3 of the Usurious Loans Act (as amended) to the case. (282 A, BJ (iii) Ordinarily court of appeal cannot take into account new law, brought into existence after the Judgment appealed from ha• been rendered, because the rights of the litigants in an appeal are determined under the law in force at the dste of the suit. Matters of procedure are however different and the law affecting procedure is always retr05~ive. But it does not mean that there is an absolute rule of inviolab11ity of mbstantive rights. If the new law speaks in language, which expressly or by clear lntendment, takes in even pending matters, the court of trial as well as the court of appeal may give effect to such law even II afler the judgment of the court of first instance, The distinction between laws affecting procedure and tlto•e affecting vested rights does not matter wbea the court is)nvited by law lo take away from ~ plaintil!, what· he has obtal!led under judgment. (280 B-Hl

[ 1966] 3 S.C.R.

SllPRHIF COURT REPORTS

Quilter v. Mapleson, (1882)9 Q.B.D. 672, Slavin v. Falrbrass (1919)88 LJ. K.B. 1004 and Mukerjee (K.C.) v. Mst. Ramratan, 63 I.A. 47, refer· red to.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 246 of 1964.

Appeal by special leave from the judgment and decree dated October 15, 1959 of the Punjab High Court (Circuit Bench) at Delhi in R.F.A. No. 1-D of 1954. S. T. Desai, D. R. Prem and Mohan Beharilal, for the appel· !ants. N. C. Chatterjee, and H. P. Wanchoo, for respondents Nos. to 5.

Tiry11gi Narain, for respondent No. 6. The Judgment of the Court was delivered by

Hidayalullah, J. In this appeal by special leave against the judgment and decree of the Punjab High Court dated October 15, 1959 the only question is whether, in the facts to be stated pre-sently, the High Court was right in reducing interest m preli· minary mortgage decree dated August 12, 1953 by applying ss. 5 and 6 of the Punjab Relief of Indebtedness Act which were extended to Delhi on June 8, 1956.

On January 17, 1946, Hazarilal (predecessor of respondents 1 to 5) and one Jagat Narain (respondent 6) executed simple mortgage deed for Rs. 50,000 with interest at 9% per annum or in default of payment of interest for 3 months at Re. 1 per cent per month for the period of default. As the mortgagors made default in payment of interest and also did not pay anything out of the mortgaged amount suit was filed for enforcement of the mort!!age by sale of properties. The claim was for Rs. 76,692/9/8, by calculating interest at 9 per cent per annum for the first 3 months and at 12 per cent per annum till institution of the suit and allowing credit for Rs. 14,000 as repayment. The defendants admitted the mortgage and the consideration but pleaded that the rate of interest was both penal and excessive. This plea was not accepted and preliminary decree was pa•sed for the full claim on August 12, 1953. Ha7.arilal alone anpealed on January 5, 1954 (R.F.A. No. 1-D of 1954)' and asked for reduction of interest by Rs. 7,900 and of the rate of future interest to 9 per cent per annum. Court fee was paid on Rs. 7, 900. During the pendency of this appeal the decree was made final on April 3, 1954.

Before the appeal was disposed of Inderjit and Satya Narain, sons of Hazarilal, filed suit for declaration that the properties were ancestral and belonged to joint family. They claimed that the properties could not be sold and asked for temporary injunc-tion which was first granted and later vacated. Against the order vacating the stay they filed an appeal (F.A.O. 68-D of 1957) and obtained temporary stay from the High Court. The mortgagees also filed in that appeal petition ( S.M. 1318-D of 1957) for vacation of the stay order. On February 10, 1958 conditional stay order was passed by learned single Judge of the High Court but we need not trouble ourselves with it.

On October 29, 1958 the legal representatives of Hazarilal (respondents 1 to 5) presented an application under s. ,3 of the Usurious Loans Act, as amended by s. 5 of the Punjab Relief of Indebtedness Act, when the latter Act was extended to Delhi on June 8, 1956 under s. 2 of Part States (Laws) Act, 1950 (30 of 1950) and claimed that interest in excess of 7t per cent per annum could not be awarded in this suit. We may, at this stage, read the relevant sections. Section 3 of the Usurious Loans Act, in so far as it is material to our purpose, reads as follows :-

"3. Re-opening of transactions.

( 1) Notwithstanding anything in the Usuary Laws Repeal Act, 1855, where, in any suit to which this Act applies, whether heard ex parte or otherwise, the Court has reason to believe,-

( a) that the interest is excessive; and

(b) the Court may exercise all or any of the following powers, namely, may,-

( i) re-open the transaction, take an account between the parties, and relieve the debtor of all liability in respect of any excessive interest;

(2) (a) In this section "excessive" means in excess of that which the Court deems to be reasonable having regard to the risk incurred as it appeared, or must be taken to have appeared, to the creditor at the date of the loan.

(b) (c)

Section 6 of the Act gave retrospective effect to the above provi-!rlons by enacting :-

DAYAWATI v. lNDERJIT (Hldayamllah, J.)

"6. Retrospective effect.-·

The provisions of this part of the Act shall apply to all ·suits pending on or instituted after the com-mencement of this Act."

The decree-holders opposed the application on several grounds. The main grounds (and they are the grounds urged in this Court) were that s. 5 of the Punjab Relief of Indebtedness Act merely amended s. 3 of the Usurious Loans Act, that neither section applied to the facts of the case and that no such plea was ta~en in the court below. R.F.A. 1-D of 1954 came up for heanng on October 15, 1959 before Divisional Bench and by the judg-e ment under appeal the amount of interest in the mortgage was reduced by Rs. 15,027 by applying the provisions of the Punjab Relief of Indebtedness Act. The Divisional Bench followed an earlier decision of the same court reported in L. Ram Sukh Das v. Hafiz-u/-Rahman and others.(') It was held in that case that the provisions of the Punjab Relief of Indebtedness Act applied to case in which decree had already been passed and an appeal was pending at the time the amendment was brought into force. The Divisional Bench in this case held that on the date on which they decided the appeal the provisions of the Punjab Relief of Indebtedness Act had been extended to Delhi and they were required to apply those provisions and interest in excess of 7! per cem per annum could not be awarded.

The preliminary decree was modified by reducing interest up • to the date of the suit to Rs. 11,665 by applying the rate of 7 t per cent per annum simple and future interest was awarded als0> at the same rate. The judgment debtors who had applied in the· High Court were ordered to make good the court fee on Rs. 7,127. After sundry unsuccessful proceedings which included· an application for review and another for certificate, the decree-holders filed this appeal after obtaining special leave of this Court.

In this appeal it is contended on behalf of the decree holders that s. 5 of the Punjab Relief of Indebtedness Act can only apply to suit instituted or pending after the section comes into forcec and not in an appeal after the suit has ended in decree. It is further contended that this will be all the more so, because the seetion itself is made retrospective for suits pending on or instituted after the commencement of the Act and thus cannot affect the vested right which the judgment had given to the appellants. We have, therefore, to decide whether the provisions of ss. 5 and 6-

of the Punjab Relief of Indebtedness Act could be invoked by the Divisional Bench to reduce the interest as stated above.

Tho amended section 3 of the Usurious Loans Act is plainly mandatory because it makes it obligatory for court to rc-ope11 transaction if there is reason to believe that the interest is oxces-sive. Further, where the rate of interest exceeds seven and half percentum per annum simple, the court must hold that it is exces-sive. Therefore if the amended section 3 of the Usurious Loans Act applies to the case in hand, the High Court was right in acting as it did. To this Mr. S. T. Desai raises no exception. He contends, however, that s. 6 of the Relief of Indebtedness Act in giving retrospection to section 5 by which the amendments were made, limits it to suits pending on or instituted after the com-mencement of the Relief of Indebtedness Act and submits that the suit here was neither pending on nor instituted after June 8, 1956 when that Act commenced in the Union Territories of Delhi. The respondents in reply submit that the appeal court must apply the provisions of the Relief of Indebtedness Act same as the court -of trial, because the word 'suit', where the section speaks of pending suit. includes an appeal from the decision in the suit.

Now as general proposition, it may be admitted that ordi-narily court of appeal cannot take into account new law, brought into existence after the judgment appealed from has been rendered, because the rights of the litigants in an appeal are deter-mined under the law in force at the date of the suit. Even before the days of Coke, whose maxim-a new law ought to be pro-spective, not retrospective in its operation-is oft-quoted, courts have looked with disfavour upon laws which take away vested rights or affect pending cases. Matter~ of procedure are, how-ever, different and the law affecting procedure is always retrospec-tive. But it does not mean that there is an absolute rule Qf inviolability of substantive rights. If the new law speaks in language, which, expressly or by clear intendment, takes in even pending matters, the court of trial as well as the court of appeal must have regard to an intention so expressed, and the court of :appeal may give effect to such law even after the judgment of the court of first instance. The distinction between laws affecting procedure and those affecting vested rights does not matter when the court is invited by law to take away from successful plaintiff, what he has obtained under judgment. Sec Quilter v. Maple-son(') and Stl7Vi11 v. Fairbrass,(') which are instances of new laws being applied. In the former the vested rights of the landlord (1) (1882) 9 Q.B 672. (2) (1919) 881..J. K.B. 1004.

DAYAWATI v. INDERJIT (Hidayatu/lah, J.)

to recover possession and in the latter the vested right of ~· ~­tutory tenant to remain in possession were taken away after Jl!ll8-ment See also Maxwell's Interpretation of Statufi'.s (11th &Ill;) pp. 211 and 213, and Mukerjee (K. C.) v. Mst. Ramratan,(1) where no saving in respect of pending suits was implied when s. 26(N) and (0) of the Bihar Tenancy Act (as amended;by Bihar Tenancy Amendment Act, 1934) were clearly applicable to all cases without exception.

Section 6 of the Relief of Indebtedness Act is clearly re4'Qs-pective. Indeed, the heading of the section shows that it lays down the retrospective effect. This being so, the core of the problem really is whether the suit could be said to be pending on June 8, 1956 when only an appeal from the judgment in the suit was pend-ing. This requires the consideration whether the word 'suit' includes an appeal from the judgment in thei suit. An appeal has been said to be "the right of entering superior court, and invoking its aid and interposition to redress the error of the court below." (Per Lord Westbury in Attorney General v. Sillem('). The only difference between suit and an appeal is this that an appeal "only reviews and corrects the proceedings in cause already constituted but does not create the cause." As it is in-tended to interfere in the cause by its means, it is part of it, and in connection with some matters and some statutes it is said that an appeal is continuation of suit. In the present Act the in-tention is to give relief in respect of excessive interest in suit which is pending and preliminary decree in suit of this kind does not terminate the suit. The appe;il is part of the cause because the preliminary decree which emerges from the appeal will be the decree, which can become final decree. Such an appeal cannot have an independent existence. If this be not ac-cepted for the purpose of the application of s. 3 of the Usurious Loans Act (as amended) curious results will follow. The appeal court in the appeal is not able to resort to the section but if the suit were remanded the trial court would be compelled to apply it. For although, in the appeal proper, that judgment must be rendered which could be rendered by the court of trial, but if the suit is to be reheard, then the judgment must be given on the existing state of the law and that must include s. 5 by reasoa of s. 6 of the Punjab Relief of Indebtedness Act. It is hardly to be suggested that this obvious anomaly was allowed to exist. It would, therefore, appear that in speaking of pending suit, the legislature was thinking not only in terms of the suit proper but also

(I) 63 I.A. 47.

(2J 11 E.R. 12·10 at 1209.

of 'those stages in the life of the suit which ordinarily take place before final executable document comes into existence. The words df the section we are concerned with, speak of suit pending on the commencement of the Act and it means live suit whether in the court of first instance or in an appeal court where the judgment of the court of first instance is being considered. It only excludes those suits in which nothing further needs to be done in relation to the rights or claims litigated, because an executable decree which may not be reopened is already in existence. The decision of the High Coun wa~ right in applying s. 3 of the Usurious Loon~ Act (as amended) to the case.

The appeal thus fails and it will be dismissed with costs .

.Appeal dismissed.