TaxTMI 
TaxTMI 
2019 (4) TMI 793
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....ants sold for consideration the plaint schedule property to one Bholanath Auddy (hereinafter referred to as "Bholanath"). Simultaneously, Bholanath created tenancy in favour of the defendants at the monthly rent of Rs. 50/-. It was agreed that the share of corporation tax shall be paid by the defendants. It was also agreed between Bholanath and defendants that the defendants were to vacate and deliver possession on the expiry of two years from 28.11.1959. Thereafter, an agreement for sale was entered into on 15.8.1960 between Bholanath and Atul Chandra Das. He agreed to sell plaint schedule property for Rs. 9000/-. Since Bholanath failed to perform the obligation, O.S. No.171 of 1962 was filed by Atul Chandra Das for specific performance. On 30.11.1977 a decree was passed in favour of Atul Chandra Das. In terms of decree he deposited the balance consideration and finally a sale deed was executed in his favour. He claimed to be the landlord of the building and alleging that defendants have no right to occupy the premises, he sought recovery of possession by evicting the defendants. The defendants filed written statement. That apart they also filed the other suit namely Suit No.1271 ....
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.... and objectively for Rs. 8500/- and Court fee stamp of Rs. 4.15 is paid on the sum of Rs. 51/- being the value for declaration with injunction and court fee stamp Rs. 525.00 is paid on the sum of Rs. 6500/- being balance of the principal due the total court fee paid being Rs. 529.15p. The plaintiffs therefore pray- (a) That the suit be decreed for:- (i) Declaration that the sale dated 28.11.59 for the consideration of Rs. 8000/- of the property described in the schedule "A" below by Sm. Annapurna Devi since deceased, Ashutosh Bhattacharyya, since deceased and the plaintiff nos.1 and 2 to Bhola Nath Duddya, since deceased followed by the condition of re-transfer as per agreement for sale dt. 7.12.59 by Bholanath Auddya since deceased in favour of Sm. Abhoya Devi, since deceased Sm. Karuna and Sm. Rama Devi since deceased, on payment of Rs. 10,000/- within 2 years was on ostensible sale amounting to a mortgage by conditional sale and the sallers in the said deed of sale were mortgagors and the buyer therein was the mortgagee and the period of redemption was 2 years as provided in the said agreement for sale dt. 7.12.59. (ii) declaration that either....
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....1 under the said decree and/ or taking any advantage under the said decree and/ or taking any and/ or the said conveyance and interfering with the possession of the plaintiffs in the property described in the schedule "A" below in any way including recording his name in Calcutta Corporation and/ or in the Calcutta Collectorate. ii. From preceding with the Ej. Suit No. 782 of 79 now pending before the ld. Registrar's Bench City Civil Court, Calcutta. iii. For temporary Injunction to the effect as prayed for in prayer Nos. b(i) and (ii) above till the disposal of this suit. iv. That the suit be decreed for Rs. 8500/- or such other sum as may be determined by the court as the present balance of the mortgage money payable by the plaintiffs for redemption of the mortgage. c. That the property described in schedule "A" below be freed from the mortgage on deposit in court or payment to whoever will be declared to be the mortgagee or mortgagees by the plaintiffs of the mortgage money to be decreed by the court. d. That the suit be decreed for Costs. e. That the suit be decreed for any other relief or reliefs to which the plaintiffs may ....
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....e Atul Chandra Das. The suit for specific performance was a collusive suit. 9. Section 58(c) of the Transfer of Property Act reads as follows:- "58(c). Mortgage by conditional sale - Where, the mortgagor ostensibly sells the mortgaged property- on condition that on default of payment of the mortgage-money on a certain date the sale shall become absolute, or on condition that on such payment being made the sale shall become void, or on condition that on such payment being made the buyer shall transfer the property to the seller, the transaction is called mortgage by conditional sale and the mortgagee a mortgagee by conditional sale, [Provided that no such transaction shall be deemed to be a mortgage, unless the condition is embodied in the document which effects or purports to effect the sale]" It is undoubtedly true that under Section 58(c), the proviso makes it indispensable to constitute a transaction a mortgage that one of the conditions mentioned in Section 58(c) be incorporated in the document by which the conditional sale is effected. However, it is now time to refer to Section 37(a) of the State Act. It reads as und....
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.... for initiating proceeding under Section 36 of the said Act. Section 38 provides that any borrower may make any application at any time to a Court which would have jurisdiction to entertain suit by the lender for the recovery of the principal and interest of a loan before or after the commencement of the said Act for taking accounts and for declaring amount due to the lender. Such application shall be in the prescribed form and shall be accompanied by a fee of one rupee and on receipt of such application the Court shall cause a notice thereon to be served on the lender. The Court shall thereafter take an account of the transaction between the parties and declare the amount, if any due and payable but not due by the borrower to the lender, whether as principal or interest or both. A proceeding under Section 38 shall be deemed to be a suit for the purpose of Section 11 of the Civil P.C. 1908. Admittedly, the plaintiff has not filed any application under Section 38 of the Act far less in the prescribed form. As such the question of payment of a fixed court fee of one rupee would not arise. Section 38 does not contemplate any suit. It enables a borrower to make an application in the pr....
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....surance company, Life Insurance Corporation of India, mutual insurance company, provident insurance society or from a provident fund; (e) an advance made on the basis of a negotiable instrument as defined in the Negotiable Instruments Act, 1881, (26 of 1881) other than a promissory note; (f) Omitted by W.B. Money Lender Amendment Act, (Act IV of 1931) (g) * * * * (h) a loan made to or by the Administrator General and Official Trustee of West Bengal or the Commissioner of Wakfs or the Official Assignee or the Official Receiver of the High Court in Calcutta; (i) a loan or debenture in respect of which dealings are listed on any Stock Exchange;" 13. Commercial loan is defined in Section 2(4) of the State Act. Section 2(22) defines suit to which this Act applies. It reads as follows:- "2(22) "suit to which this Act applies" means any suit or proceeding instituted or filed on or after the 1st day of January, 1939 or pending on that date and includes a proceeding in execution- (a) for the recovery of a loan advanced before or after the commencement of this Act; (b) for the enforcement of any agreement entered into....