ATUL CHANDRA DAS (D) THROUGH LRS.versusRABINDRA NATH BHATTACHARYA (D) THR. LRS. & ORS. ETC.

                         [2019] 5 S.C.R. 1185                             1185


          ATUL CHANDRA DAS (D) THROUGH LRS.                               A
                                  v.
 RABINDRA NATH BHATTACHARYA (D) THR. LRS. & ORS.
                     ETC.
                (Civil Appeal Nos. 8793-8794 of 2013)                     B
                           APRIL 04, 2019
        [ASHOK BHUSHAN AND K. M. JOSEPH, JJ.]
      Bengal Money Lenders Act, 1940:
       s.37A – Suit by appellants for ejectment of respondents from       C
suit property – Stating that the respondents (original owners) had
sold the suit property to ‘B’ and thereafter ‘B’ sold the property to
predecessor-in-interest of the appellants – Respondents countered
the case of appellants and also filed title suit stating that the prop-
erty was mortgaged with conditional sale, by them in favour of ‘B’
                                                                          D
against a loan and that even before expiry of redemption period,
‘B’ in collusion with the appellants entered into agreement to sell
the property to the appellants – Trial court dismissed the suit of
appellants and decreed the suit of respondents placing reliance on
s.37A of Bengal Money Lenders Act and holding that the sale by
respondents to ‘B’ was a mortgage with conditional sale – High            E
Court confirmed the order of trial court – On appeal inter alia
contended that s. 37A since is contained under State Act is
repugnant to central law i.e. s.58(c) of Transfer of Property Act –
Held: The respondents cannot be non-suited for inapplicability of
s. 37A as the respondents had sought reliefs relating to redemption
                                                                          F
– Section 58(c) of Transfer of Property Act when read with s. 37A
of Money Lenders Act, it is clear that the legislature intended to
override the effect of proviso to s. 58(c) by enacting s. 37A – s. 37A
is traceable to the Entry ‘Transfer of Property’ in the Concurrent
List and not to ‘money lending’ in State List of VII Schedule – Even
if there is inconsistency between s.58(c) of Transfer of Property Act     G
and 37A of the State Act, in view of the assent given by the
President, the matter falls u/Art. 254(2) of the Constitution and
therefore, s. 37A of the State Act will prevail – Transfer of Property
Act, 1882 – s. 58(c) – Constitution of India – Art. 254(2), VII
Schedule.
                                                                          H
                                 1185
1186            SUPREME COURT REPORTS                      [2019] 5 S.C.R.


 A           Dismissing the appeals, the Court
             HELD: 1.1 Under Section 58(c)of Transfer of Property Act,
       1982, 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
 B     conditional sale is effected. However, keeping Section 58(c) side
       by side with Section 37A of the Bengal Money Lenders Act, 1940
       (State Act) the conclusion is inevitable that the State legislature
       has intended to override the effect of proviso to Section 58(c) of
       the Transfer of Property Act by enacting Section 37A in the State
       Act. Section 37A was incorporated by way of an amendment in
 C     the State Act. Reading of Section 37A brings out the legislative
       intent with unambiguous clarity and therefore the High Court
       was right in relying upon Section 37A of the State Act to find that
       though it was by agreement dated 07.12.1959 which is a separate
       document that condition to make it a mortgage was incorporated
 D     it would not make any difference. Despite the sale deed dated
       27.11.1959, the respondents continued to be in possession of
       the plaint scheduled property and it has been found that they
       paid the taxes. It is further found that the market value of the
       property would not have been less than Rs. 30 thousand as on
       the date of the alleged sale namely 27.11.1959.
 E     [Paras 9 and 10][1193-C-D; F-H; 1194-A-B]
              2. A Suit for redemption is mentioned as suit to which
       Section 36 of the State Act applies. Section 38 undoubtedly
       enables the borrowers to seek a direction for taking accounts.
       The reliefs in the suit filed by the respondents include reliefs
 F     relating to redemption in the form it is asked for. In fact, no issue
       in this regard was taken before the Trial Court. There is no reason
       to non-suit, the respondents on this ground. [Paras 15 and
       16][1197-C-E]
              3.1 It was pleaded that Money lending falls as entry (30) in
 G     the State List of the Constitution. Transfer of Property other than
       agricultural land falls in Entry 6 in the concurrent list. The State
       legislature in enacting Section 37A of the State Act, a law relating
       to money lending has made a law which is inconsistent and
       therefore, repugnant to the law made by the Parliament in Section
 H
  ATUL CHANDRA DAS (D) THR. LRS. v. RABINDRA NATH                             1187
           BHATTACHARYA (D) THR. LRS.

58(c) of the Transfer of Property Act. This contention is taken               A
for the first time in this Court. There is also no merit in the same
at any rate. Section 37A is traceable to the Entry ‘Transfer of
Property’ which is found in the Concurrent List. [Para 17]
[1197-E-H]
      3.2 Even if the Court proceeds on the basis that there is               B
an inconsistency between Section 58(c) of the Transfer of Property
Act and Section 37A of the State Act, in view of the assent given
by the President, the matter falls under Article 254(2) of the
Constitution. Therefore, despite the inconsistency, Section 37A
of the State Act will prevail in the State. [Para 18][1198-E-F]
                                                                              C
      Swarnalata Tat v. Chandni Charan Dey and Ors.
      AIR 1984 Calcutta 130 – referred to.
                         Case Law Reference
      AIR 1984 Calcutta 130             referred to           Para 6
                                                                              D

      CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 8793-
8794 of 2013.
      From the Judgment and Order dated 19.09.2006 of the High
Court at Calcutta in F.A. Nos.7 and 8 of 1989                                 E
     Ms. Neha Sharma, Ms. Daisy Hannah, Ms. Sreoshi Chatterjee,
Shekhar Kumar, Advs. for the Appellants.
       C. M. Angadi, Rameshwar Prasad Goyal, Shereef K. A., Advs.
for the Respondents.
                                                                              F
      The Judgment of the Court was delivered by
       K. M. JOSEPH, J. 1. The appellants are the legal
representatives of one Atul Chandra Das. These appeals are directed
against the common judgment of the Calcutta High court dismissing the
First Appeal No.7 of 1989 and First Appeal No.8 of 1989. The appeals          G
were filed by Atul Chandra Das against the dismissal of E.S. No.782 of
1979 filed by him for ejectment of the respondents from the plaint schedule
property and decreeing of Suit no.1271 of 1980 filed by the respondents
which would be referred to as the title suit. Thus, the appeals before us

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1188            SUPREME COURT REPORTS                          [2019] 5 S.C.R.


 A     are lodged against the concurrent finding of the courts below and
       maintained by special leave granted by this Court.
             2. The case set up by Atul Chandra Das is as follows:
              By a registered deed of conveyance dated 28.11.1959 (the parties
       shall be referred to as in the position in the trial Court), the defendants
 B     sold for consideration the plaint schedule property to one BholanathAuddy
       (hereinafter referred to as “Bholanath”). Simultaneously,Bholanath
       created tenancy in favourof 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
 C     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
 D     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
 E     statement.That apart they also filed the other suit namely Suit No.1271
       of 1980.Therein the following averments were made inter alia:
              Smt. Annapurna Devi (since deceased) was the owner for life of
       the property and on her death, herthree sons namely Late Ashutosh
       Bhattacharya, Late Dulal Krishna Bhattacharya and Rabindra Nath
 F     Bhattacharya (hereinafter referred to as ‘Bhattacharyas and who are
       the defendants in the suit filed by Atul Chandra Das and plaintiffs in
       O.S. No. 1271/1980) were given absolute rights, in terms of the will
       executed by Bijoy Kr. Ghosal, the owner of the property.They set up the
       case that a sum of Rs.8000/- came to be borrowed from Bholanath on
       28.9.1959. To secure Rs.8000/- Bhattacharyas mortgaged by conditional
 G     sale,on 28.11.1959 the plaint schedule property in favour of Bholanath.
       In order to give effect to mortgage an agreement for sale was entered
       into on 07.12.1959 with Aboya Devi(since deceased wife of Late
       Ashutosh Bhattacharya and deceased Late Karuna Bhattacharya, the

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  ATUL CHANDRA DAS (D) THR. LRS. v. RABINDRA NATH                               1189
    BHATTACHARYA (D) THR. LRS. [K. M. JOSEPH, J.]

wife of first plaintiff in a title suit and Late Smt. Rama Devi, daughter of    A
Annapurna Devi) who were the nominees of the mortgagors for the
agreement to sell of the house on payment of a sum of Rs. 10,000/-
which was settled to be the mortgage money, no rate of interest having
been stipulated.Two years was agreed to be the period of redemption of
mortgage. The title deeds were to be kept with Bholanath by way of
                                                                                B
further security. The agreement which is referred to by Atul Chandra
Das as an agreement for sale in his favour dated 15.8.1960 is described
as a collusive and fraudulent agreement and it was entered into before
the expiry of period of redemption. The plaint schedule property comprised
of a three storied building standing upon an area of 1 cottah and 8
chittackas of land and the value at the relevant time would not have            C
been less thanRs.30,000/-,the annual municipal value being Rs.1469/-
declared at that point of time. Bholanath was a mere mortgagee in a
mortgage by conditional sale. The specific performance suit was described
as a collusive suit. Bhattacharyas claimed to be the owners being legatees
under the will. The relief sought by the plaintiffs in O.S. No.1271 of
                                                                                D
1980is relevant. The relevant portion reads as below:-
      “20. For the purpose of jurisdiction the suit is valued for declaration
      with consequential relief of perpetual injunction at Rs.51/- there
      being no objective standard of valuation 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         E
      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:-                                        F
      (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 BholaNath Duddya,
      since deceased followed by the condition of re-transfer as per            G
      agreement for sale dt. 7.12.59 by BholanathAuddya since de-
      ceased 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

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1190      SUPREME COURT REPORTS                            [2019] 5 S.C.R.


 A     conditional sale and the sallers in the said deed of sale were mort-
       gagors 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 the defendant Nos. 2 to 7 are the present
 B     mortgagee being the heirs and legal representatives of the said
       BholanathAuddya, deceased or in alternative the defendant no. 1
       is the present mortgages, by subrogation having stepped in the
       shoes of the said BholanathAuddya by purchase.
       (iii) declaration that the right of redemption of the said mortgage
 C     by conditional sale is still subsisting and the plaintiffs are entitled
       to redeem the said mortgage on deposit of the mortgage money
       amounting to Rs.8500/- in court or such amount as may be deter-
       mined by the Court or payment of the same to who ever may be
       declared to be the mortgages or mortgagees.
 D     (iv) Declaration that the agreement dated 15.08.60 between the
       said BholanathAuddya since deceased and the defendant No. 1
       for sale of the property described in the schedule “A” below is a
       collusive and fraudulent agreement and not enforceable in law.
       (v) Declaration that the decree dated 30.11.77 of the Hon’ble
 E     High Court at Calcutta in Suit No. 171 of 62 for specific perfor-
       mance of contract for the sale of the property described on the
       schedule “A” below was obtained by practising fraud upon the
       court by the defendant No. 1 and the said Bhola Nath Auddya
       since deceased collusively.

 F     (vi) declaration that the said decree of the Hon’ble High Court at
       Calcutta and the conveyance executed thereunder on 26.3.79 by
       the Registrar Original Side of the said Hon’ble High Court for
       sale of the property described in the schedule “A” below in favour
       of the defendant No. 1 are not enforceable in law and the defen-
       dant No. 1 cannot take any advantage under the said decree and/
 G     or the said conveyance in enforcement of the same.
       (vii) declaration that the defendant No. 1 has no right title and
       interest in the property described in the schedule “A” below ei-
       ther as owner or as landlord nor has any right to file the Ej. Suit
       no. 782 of 1979 in the city civil court, Calcutta now pending be-
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  ATUL CHANDRA DAS (D) THR. LRS. v. RABINDRA NATH                            1191
    BHATTACHARYA (D) THR. LRS. [K. M. JOSEPH, J.]

      fore the Ld. Registrars’ Bench and/ or proceeding with the same.       A
      That the suit be decreed for perpetual injunction restraining the
      defendant No. 1.
      i. From enforcing the said decree dt. 20.11.77 in suit no. 171 of 62
      of the Hon’ble High Court at Calcutta and/ or enforcing the con-
      veyance dt. 26.3.79 executed by the Registrar Original side, High      B
      Court at Calcutta in favour of the defendant No. 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 sched-
      ule “A” below in any way including recording his name in Calcutta      C
      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.               D
      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.
                                                                             E
      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.
                                                                             F
      e. That the suit be decreed for any other relief or reliefs to which
      the plaintiffs may be entitled under law and equity. “
       3. The trial Court proceeded to consider the evidence and on the
basis of same came to the conclusion that there is no merit in the case
set up by Atul Chandra Das. It was found to be a case of mortgage by         G
conditional sale and suit filed by Atul Chandra Das was dismissed and
the suit filed by the Bhattacharyas came to be decreed. As already
noticed, the High Court has confirmed the said decree.


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1192            SUPREME COURT REPORTS                          [2019] 5 S.C.R.


 A          4. We heard the learned counsel for the appellant and learned
       counsel for the Bhattacharyas.
              5. The learned counsel for the appellant would submit before us
       that the courts below have proceeded to find that the sale dated 28.11.1959
       executed by the previous owners,namely the defendants in favour of
 B     Bholanath was a mortgage without noticing that such a finding will be in
       the teeth of the proviso to Section 58(c) of the Transfer of Property Act.
       In other words, in order to constitute a mortgage by way of conditional
       sale, the proviso to Section 58(c) of the Transfer of Property Act
       mandates that the condition of agreement to sell which is what is relied
       upon by the Bhattacharyas to make Bholanath a mortgagee must have
 C     been incorporatedin one document. In this case on the other hand, there
       is no dispute that the Bhattacharyas relied upon a separate and distinct
       document namely an agreement to sell executed by Bholanath in favour
       of the Bhattacharyas dated 7.12.1959. There is no condition
       forreconveying the property contained in the sale deed dated 28.11.1959.
 D             6. The second submission is that the courts have gone wrong in
       relying on Section 37A of the Bengal Money-Lenders Act, 1940
       (hereinafter referred to as ‘the State Act’). It is her contention that the
       suit filed by the Bhattacharhyas was not filed under the State Act. There
       was no account demanded within the meaningof the Act. Support was
 E     sought to be drawn from the judgment of the Single Bench reported in
       SwarnalataTat v. Chandni Charan Dey and Ors.AIR 1984 Calcutta
       page 130.
             7. The last submission is as follows:-
            Section 37(A) contained under the State Act is repugnant to Central
 F     Law namely Section 58(c)of the Transfer of Property Act.
             8. Per contra, the learned counsel for the respondent supported
       the judgment. He submitted that Bholanath had not obtained any title
       under the purported sale deed dated 27.11.1959. He could not have
       conveyed any title to the Atul Chandra Das. The suit for specific
 G     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-
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  ATUL CHANDRA DAS (D) THR. LRS. v. RABINDRA NATH                                 1193
    BHATTACHARYA (D) THR. LRS. [K. M. JOSEPH, J.]

       on condition that on default of payment of the mortgage-money              A
       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,                                       B

       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           C
       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
conditionsmentioned in Section 58(c) be incorporated in the document
by which the conditional sale is effected. However, it is now time to             D
refer toSection 37(a) of the State Act. It reads as under:-
       “37(a)Saving as to mortgage by conditional sale. – In the case
       where any loan is secured by a mortgage and the mortgagor
       ostensible sells the mortgaged property on any of the conditions
       specified in sub-section (c) of section 58 of the Transfer of Property
                                                                                  E
       Act, 1882 (4 of 1882) then, notwithstanding anything to the contrary
       contained in the proviso to the said sub-section, the transaction
       shall always be deemed to be a mortgage by a conditional sale
       and the mortgagee a mortgagee by conditional sale for the purpose
       of the said sub-section.”
                                                                                  F
       10. Keeping Section 58(c) side by side with Section 37(a) of the
State Act, the conclusion is inevitable that the State legislature has intended
to override the effect of proviso to Section 58(c) of the Transfer of
Property Act by enacting Section 37(a) in the State Act. Section 37(a)
was incorporated by way of an amendment in the State Act. Reading of
Section 37(a) brings out the Legislative intent with unambiguous clarity          G
and therefore the High court was right in relying upon Section 37(a) of
the State Act to find that though it was by agreement dated 07.12.1959
which is a separate document that condition to make it a mortgage was
incorporated it would not make any difference. We may also notice that
                                                                                  H
1194            SUPREME COURT REPORTS                           [2019] 5 S.C.R.


 A     despite the sale deed dated 27.11.1959, the Bhattacharyas continued to
       be in possession of the plaint scheduled property and it has been found
       that they paid the taxes. It is further found that the market value of the
       property would not have been less than Rs.30 thousand as on the date of
       the alleged sale namely 27.11.1959.
 B            11. The next contention is that suit filed by Bhattacharya was not
       under the State Act.Support was sought to be drawn from the judgment
       of the Single Judge reported inSwarnalataTatcase(Supra). Para 12 of
       the judgment relied upon by the appellants reads as follows:-
             “12. The first question which calls for determination is whether
 C           the present suit is a suit under the Bengal Money Lenders Act,
             1940 (hereinafter referred to as the said Act). Section 36(1) of
             the said Act empowers the Court to re-open a decree in any suit
             to which the Act applies or in any suit brought by a borrower for
             relief under the Section, to re-open the transaction whether the
             suit has been heard ex parte or otherwise. Nowhere in Section
 D           36, it is provided that a fixed court fee of Re. 1 is to be paid 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
 E           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
 F           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
 G           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 prescribed form asking the Court to take an
             account and to declare the amount due to the lender. Merely

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  ATUL CHANDRA DAS (D) THR. LRS. v. RABINDRA NATH                            1195
    BHATTACHARYA (D) THR. LRS. [K. M. JOSEPH, J.]

      because a fixed court fee of one rupee has been paid, the suit         A
      cannot be corrected into an application under Section 38 of the
      said Act. Assuming that the Court should have treated the suit as
      an application under Section 38 of the said Act, even then the
      plaintiff cannot succeed in her contention. The requirements of
      Section 38 have not been complied with. There is no prayer for
                                                                             B
      taking account and for declaring the amount due to the lender. No
      borrower can call in and the procedure prescribed under Section
      38 unless he asks for account and determination of the amount
      due to the lender. Even if the loan is secured, the borrower need
      not ask for redemption. He will be at liberty to file an application
      for determination only of the amount due from him. This was not        C
      done by the plaintiff, who claims to be the successor-in-interest
      of the borrower. On the contrary, the plaintiff has asked, inter
      alia, for the following reliefs in the plaint:—
      (a) For a decree declaring the aforesaid transaction is a loan
      transaction and declaring that the aforesaid deed of sale is an        D
      ostensible deed of sale as a security to repayment of the said loan
      is repaid.
      (b) For a decree of permanent injunction restraining the defendant
      No. 1 from claiming any right of ownership in the property in suit
      by virtue of the aforesaid deed of sale.                               E
      Having regard to the provisions of Ss. 36 and 38 of the said Act
      and the averments made in the plaint and the reliefs claimed in
      the suit, I am unable to accept the contention of Mr. Mullick that
      the present suit is suit under the Bengal Money Lenders Act,
      1940.”                                                                 F
     12. It is at once necessary to notice Section 2(12) of the State
Act which defines the word “loan”.
      “2(12). “loan” means an advance, whether or money or in kind,
      made on condition or repayment with interest and includes any
      transaction which is in substance a loan but does not include-         G
      (a) *     *        *       *
      (b) *     *        *       *


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1196            SUPREME COURT REPORTS                            [2019] 5 S.C.R.


 A           (c) A loan taken or advanced by, by the Central Government or
                 any State Government or by any local authority in West Ben-
                 gal;
             (d) A loan advanced before or after the commencement of this
                 Act –
 B           (i) by a bank; or
             (ii) by a co-operative life insurance society, co-operative society,
                  insurance company, life assurance company, Life Insurance
                  Corporation of India, mutual insurance company, provident
                  insurance society or from a provident fund;
 C
             (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
 D               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
 E               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:-
 F
             “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 com-
 G                mencement of this Act;
             (b) for the enforcement of any agreement entered into before or
                 after the commencement of this Act, whether by way of settle-
                 ment of account or otherwise, or of any security so taken, in
                 respect of any loan advanced whether before or after the
                 commencement of this Act; or
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  ATUL CHANDRA DAS (D) THR. LRS. v. RABINDRA NATH                              1197
    BHATTACHARYA (D) THR. LRS. [K. M. JOSEPH, J.]

      (c) for the redemption of any security given before or after the         A
          commencement of this Act in respect of any loan advanced
          whether before or after the commencement of this Act.”
       14. Section 36 comes under the heading ‘Reopening of
transactions’. It deals with the power of the Court to exercise all or any
of the various powers which are mentioned therein. Sub Section 4 of            B
Section 36 reads as follows:-
      “36(4). This Section shall apply to any Suit, whatever it forms
      may be, if such suit is substantially one for the recovery of a loan
      or for the enforcement of any agreement of security in respect of
      a loan or for the redemption of money such security.”                    C
       15. It will be noticed that a Suit for redemption is mentioned as
suit to which Section 36 applies. Section 38 undoubtedly enables the
borrowers to seek a direction for taking accounts.
       16. We have noticed the relief which was sought in the suit which
was considered by the learned Single Judge in SwarnalataTatAIR 1984            D
Calcutta 130. In fact, Court in the said case could not find a mortgage
proved also. The reliefs on the other hand in the suit filed by Bhattacharya
include reliefs relating to redemption in the form it is asked for. In fact,
no issue in this regard was taken before the Trial Court. We see no
reason to non-suit, the Bhattacharyas on this ground which is taken for        E
the reasons which we have given.
       17. The last contention taken is that Section 37(a) of the State
Act is repugnant to Section 58(c) of the Central Act namely, the Transfer
of Property Act. The contention runs as follows:-
       Money lending falls as entry (30) in the State List. Transfer of        F
Property other than agricultural land falls in Entry 6 in the concurrent
list. TheState legislature in enacting Section 37(a) of the State Act, a
law relating to money lending has made a law which is inconsistent and
therefore, repugnant to the law made by the Parliament in Section 58(c)
of the Transfer of Property Act.
                                                                               G
       This contention is taken for the first time in this Court. We also
see no merit in the same at any rate. Section 37(A) is traceable to the
Entry ‘Transfer of Property’which is found in the concurrent list. Article
254 of the Constitution of India reads as follows:-
                                                                               H
1198             SUPREME COURT REPORTS                           [2019] 5 S.C.R.


 A            “254. Inconsistency between laws made by Parliament and laws
              made by the Legislatures of States
              (1) If any provision of a law made by the Legislature of a State is
              repugnant to any provision of a law made by Parliament which
              Parliament is competent to enact, or to any provision of an existing
 B            law with respect to one of the matters enumerated in the
              Concurrent List, then, subject to the provisions of clause ( 2 ), the
              law made by Parliament, whether passed before or after the law
              made by the Legislature of such State, or, as the case may be, the
              existing law, shall prevail and the law made by the Legislature of
              the State shall, to the extent of the repugnancy, be void.
 C
              (2) Where a law made by the Legislature of a State with respect
              to one of the matters enumerated in the concurrent List contains
              any provision repugnant to the provisions of an earlier law made
              by Parliament or an existing law with respect to that matter, then,
              the law so made by the Legislature of such State shall, if it has
 D            been reserved for the consideration of the President and has
              received his assent, prevail in that State: Provided that nothing in
              this clause shall prevent Parliament from enacting at any time
              any law with respect to the same matter including a law adding
              to, amending, varying or repealing the law so made by the
 E            Legislature of the State.”
             18. In this case proceeding on the basis that there is an
       inconsistency between Section 58(c) of the Transfer of Property Act
       and Section 37(A) of the State Act, in view of the assent given by the
       President, the matter falls under Article 254(2). Therefore, despite the
 F     inconsistency, Section 37(A) of the State Act will prevail in the State.
              19. The argument that being part of State Act which is the Money
       Lending Act and Money lending is in the state list and therefore, it is a
       case of legislative, incompetence, does not appeal to us. We have found
       that the provisions of 37(A) is traceable to the Entry ‘Transfer of Property’
 G     in the Concurrent List and that Article 254(2) saves the provision.
              20. We see no merit in the appeals and the appeals stand dismissed.


       Kalpana K. Tripathy                                          Appeals dismissed.

 H