1. Spens, C.J.:— These appeals arise for decision a question which was left open in two previous judgments of this Court, viz., the validity of debt relief legislation enacted by Provincial Legislatures, so far as such legislation affects claims on promissory notes. The question: now arises under the Bengal Money Leader's Act, 1940 (hereinafter referred to as the Act). Section 30 of the Act contains various provisions limiting the amount and rate of interest recoverable by a lender “notwithstanding anything contained in any law for the time being in force, or in any agreement”. Section 31 either prohibits or limits the award of post-decree interest. Section 36 empowers the Court to reopen transactions, and accounts between the parties and also decrees and to release the borrower of all liability in excess of the limits specified in Cls. (1) and (2) of S. 80 and even to direct the lender to repay sums recovered in excess of the said limits. Under S. 38, the borrower may himself make an application asking the Court to take accounts between him and the lender in accordance with the provisions of the Act and declaring the amount due on that basis. This provision seems to have been made with a view to facilitate a tender or deposit of the amount so declared due (S. 39). Section 2(12)(e) makes it clear that the provisions of the Act were intended to apply even to loans advanced on the basis of promissory notes.

2. The appellant in all these cases is the Bank of Commerce, Ltd., Khulna”, an incorporated body, which by an order dated 12th May, 1941, passed by the High Court at Calcutta under S. 153A, of the Companies Act, became entitled to the assets of another registered company known as the Khulna Loan Bank, Ltd., (which for some time was also known as the Khulna Loan Company, Ltd.). The proceedings out of which these appeals arise were in some instances initiated by the lender, by way of Small Cause Suits, and in the Other instances, by the debtors, by way of applications under S. 38 of the Act. Though the proceedings commenced only during 1941, 1942 and 1943, they all related to promissory notes which had been executed many years earlier in favour of the Khulna Loan Company or the Khulna Loan Bank. In all these proceedings, the debtors pleaded that the amount recoverable from them should be ascertained on the basis of the provisions contained in the Act. The creditor company insisted that it was entitled to recover the full amount due as per terms of the document, after giving credit for payments made towards interest or in part satisfaction of the debt. It was contended on its behalf that the Act was wholly ultra vires the Provincial Legislature or that so much at least of the Act as affected the rights of banks generally and the right of promissory note holders to recover the full amount due on their promissory notes was invalid. The court of first instance overruled this contention of the bank and fixed the liability of the debtors on the basis of the provisions of the Act. The matter was carried on revision to the Calcuta High Court, but the Revision Petitions were dismissed. Hence these appeals.

3. Before referring to the judgment of the High Court, it will be convenient to state what had happened when certain aspects of the present question were raised before this court on the two previous occasions above-mentioned. The first ease Subrahmanyan Chettiar v. Muttuswami Goundan arose under the Madras Agriculturists' Relief Act, 1938, which contained provisions resembling, in some measure, the provisions of the impugned Bengal Act. The Madras Act did not in terms refer to promissory notes but it defined “debt” in terms wide enough to include debts due under promissory note. The claim in that particular case, though it arose out of a promissory note, had passed into a claim under a decree, even before the Agriculturists' Relief Act was enacted. On this ground, this Court by a majority held that it was unnecessary to pronounce upon the validity of that Act so far as it affected promissory notes as such. Sulaiman J. who dissented, was of the opinion that no distinction could be made merely on the ground that a promissory note claim had merged in a decree before the passing of that Act and he held that its provisions could not take effect as against such claims, whether they had already passed into decrees or still remained due as claims on promissory notes. Various aspects of the question were touched on in the course of the argument in that case and some of them were also discussed in the judgements. One point (relevant to the present case) was whether the offending provisions, if any, in that Act should be held to be void under S. 100, Constitution Act or merely to be void to the extent of repugnancy with other laws, under S. 107, Constitution Act. The Chief Justice did not discuss this question. Sulaiman J. went into it at some length and was of the opinion that the question should be decided by the application of the test of repugnancy. As there was some difficulty in bringing th case within the language of S. 107, of the Constitution Act, the learned Judge held that the same result must be reached by the application of what has been described as the “Doctrine of Occupied Field” in oases decided under the British North America Act. The point was adverted to in the judgment of Varadachariar J. but no opinion was expressed.

4. The next occasion when this Court had to consider the question arose in The Bank of Commerce Ltd. v. Amulya Krishna Bas That was also an appeal by the present appellant and the question arose in connexion with the very enactment now under consideration, viz., the Bengal Money Lender's Act. There too, the appellant's claim, though arising out of a promissory note, had passed into a claim under a decree, before the Bengal Act was passed. The case was therefore governed by the decision of the majority in the Madras case. Certain grounds on which counsel for the appellant sought to distinguish the Madras case were examined and were “held not to constitute grounds sufficient to lead to a different result. As a wide field was however covered by the argument, the judgment dealt with some of the points urged, without merely following the earlier decision. After observing that the Bengal Money-Lender's Act, taken as a whole, must be held to fall within the description “money-lending and money-lenders” (Entry 27 in List 2 of Sch. 7, Constitution Act), this Court added

“the fact that among the documents on which moneys may be lent promissory notes from an important class will not justify the view that the regulation and control of money-lending have to that extent been taken out of the purview of provincial legislation.”

5. Referring to the judgment of Sulaiman J. in the Madras case, it was observed that even that line of argument would not support the plea of ultra vires but would only bring in the principle of repugnancy. In answer to the argument that the whole Act should be held to be ultra vires the Provincial Legislature, even if some alone among its provisions were invalid, it was stated that

“where the problem can only be one of conflict between the provisions of the local law and the provisions of a central enactment, each being ultra vires the particular Legislature, it is unnecessary to invoke the rule of severability to uphold the validity of the impugned enactment.”

6. The observation that the test of repugnancy and not the rule of ultra vires was to be the governing principle was repeated in dealing with the argument that unlike the Madras Act, the Bengal Act was made applicable even to decrees that might be passed after 1940, in respect of promissory note claims.

7. It was in the light of the two judgements of this Court at Calcutta dealt with the present batch of cases. The learned Judges quoted the observation in The Bank of Commerce, Ltd. v. Amulya Krishna Basu Roy that the Act, taken as a whole, fell within the description “money-lending and money-lenders” and was not wholly void as ultra vires that Provincial Legislature. They next pointed out that according to that judgment, it was the doctrine of repugnancy and not the doctrine of ultra vires that had to be applied in the determination of the case. Taking the cue from an observation of Gwyer C.J. in Subrahmanyan Chettiar v. Muttuswami Goundon they construed Entry 28 in List I of Sch. 7, Constitution Act as limited to “legislation with respect to the negotiable aspect” of the instruments referred to in that entry and held that other aspects of such instruments though dealt with by the Negotiable Instruments Act, 1881, really pertained to the heads of “contract” and “evidence” which are subjects comprised in the Concurrent Legislative List. In this view interest even when due under promissory notes was, in their opinion, a matter of contract, at any rate so long as the rights of holders in due course did not come into the picture. As the Act had received the assent of the Governor-General, the learned Judges held that it provisions were to this extent not only valid but, under S. 107(2), of the Constitution Act also prevailed against the corresponding provisions of the Negotiable Instruments Act. This line of argument has since been followed and amplified by the Patna High Court in Deo Nandan Prasad v. Ram Prasa though Meredith J. would have preferred to hold that the matter was governed by S. 100, of the Constitution Act.

8. Before this court, it was contended on behalf of the appellant that, on the true interpretation of S. 400, of the Constitution Act a provincial enactment even with respect to a matter enumerated in List II would be ultra vires, if and in so far as it affected any enumerated in List 1 and that the statement in The Bank of Commerce Ltd. v. Amulya Krishna basu Roythat such instances should be judged only by the test of repugnancy should be reconsidered. As the relevant observations in the previous judgments were only obiter, we invited counsel to deal fully with all aspects of question, unhampered by those observations. The decisions on the British North America Act and the principles of interpretation to be gathered from them have been referred to at some length in the previous judgments, it will be sufficient to state the result of their application here with due regard to the language of S. 100, of the constitution Act. We agree with the appellant's contention that the question of the validity of provincial legislation with respect to a matter enumerated in List II is not finally settled by a decision that the legislation is in pith and substance one dealing with such a matter. The opening words of Sub-section (5) of that section— “subject to the two preceding subsections”—import a further limitation on the provincial power, because Sub-section (1) which is thus incorporated in Sub-section (3) enacts that notwithstanding anything contained in Sub-section (3), a provincial Legislature shall not have power to make laws with respect to any of the matters enumerated in List I. This limitation was taken note of by Sulaiman J, in Subramanyan Chettiar v. Muttuswami Goundan But he thought that the rigour of the literal interpretation of these words “relaxed” by the use of the words “with respect to” in Sub-section (1) and that accordingly a mere incidental encroachment on a List I subject was not forbidden to the provincial Legislature, if its enactment was in pith and substance one relating to a List II matter. When however even such incidental encroachment conflicted with pre-existing central legislation, he held that the Doctrine of Occupied Field should be invoked and the central legislation allowed to prevail. The observations in The Bank of Commerce, Ltd. v. Amulya Krishna Basu Roy followed this line of reasoning so far as it related the effect of S. 100, but they omitted to incorporate the limitation mentioned by Sulaiman J. that in such cases a provincial legislation can, if at all, encroach on List I subjects, only incidentally, The limitation is however implicit in the passage sited in that judgment from S. 19 of Lefrey's Treatise on Canadian Constitutional Law.

9. Counsel for the appellant contended that the incidental encroachment permitted to the provincial Legislature under the British North America Act must be held to be a peculiarity of the Canadian constitution and that even such encroachment on a List 1 subjects by a provincial Legislature in India would be a contravention of the absolute terms of prohibition employed in Sub-section (1) of S. 100, Constitution Act. We are unable to accede to this contention. The view that mere incidental encroachment would not amount to a transgression of the prohibition imposed on the provincial legislature by Sub-section (1) is supported by the observation of Lord Atkin in Gallaghar v. Lyn. There, the Parliament of Northern Ireland was empowered to make laws for the peace, order and good government of Northern Ireland But it was not to make laws “in respect of trade” with any place out of Northern Ireland, One of its enactments known as the Milk Act was impeached on the ground that its provision practically put an end to the trade in Milk between customers resident within Northern Ireland. The Judicial Committee held that the Milk Act was not a law “in respect of trade” put a law for the peace, order and good government of Northern Ireland; and it was said

“If on the view of the statute as a whole you find that the substance of the legislation is within the express powers, then it is not invalidated if incidentally it affects matters which are outside the authorised field.”

10. Toward the end of the judgment it was added.

“Though it may incidentally affect trade with country Donegal, it is not passed in respect of trade and it therefore is not subject to attack on that ground.”

11. In our judgment, a like interpretation should be placed on the words “with respect to” in S. 100(.) of the Constitution Act.

12. The difference between the opera of the rule of ultra vires and the effect of the doctrine of Occupied Field has been brought out in the recent judgment of the Judicial Committee in Attorney General for Alberta v. Attorney General for Canada. Alter noticing that in respect of the subjects specifically enumerated in S. 91 of. The British America Act (as distinguished from the general words peace, order and good government), the Dominion legislature alone had exclusive legislative authority, their Lordships observed:

“It follows that legislation coming in pith and substance within one of the classes specially enumerated in S. 91 is beyond the legislative competence of the Provincial Legislature under S. 92 In such a case it is immaterial whether the Dominion has or has not dealt with the subject by legislation has to use other well-known words whether that legislative field his not been occupied by the legislation of the Dominion Parliament.”

13. It was next pointed out:

“Since 1894 it has been a settled preposition that if a subject of legislation by the province is only incidental or ancillary to one of the classes of subjects enumerated in S. 91 and is property within one of the subjects enumerated in S. 92, then legislation by the Province is competent unless and until the Dominion Parliament chooses to occupy the field by legislation.”

14. If such as the position of provincial legislation under the British North America Act, provincial legislation in this country can stand on no better footing in view of the language of sub-section (.) of S. 100 which expressly denies power to the provincial legislature to make laws with respect to any of the matters enumerated in List 1.

15. The observations of Viscount Maugham is the Alberta case show that it would not sufficient if the impugned provisions in a provincial enactment were incidental to a subject enumerated in the Provincial List; their incidental character must be determined with reference to their relation to the subjects enumerated in List 1. The decision of these appeals will therefore depend upon the determination of the question whether the provisions of the impugned Act encroach upon List I subjects to any substantial extent or whether the interference is only incidental in the sense above explained. As observed in Attorney General for Alberta v. Attorney General for Canada, the question whether a provincial Act which indirectly interferes, in some degree, with one of the powers of the Dominion is or is not ultra vires must be determined in each case as it arises”.

16. It was contended on behalf of the appellant that the Bengal Money-Lenders Act interferes not merely incidentally but substantially with at least two of the matters enumerated in List 1 of the Seventh Schedule to the Constitution Act. By ‘making Ss. 30, 36 and 38 applicable to claims under promissory notes, it was said, that the Act was an invasion of entry 28. It was also pointed out that by discriminating between “notified banks” and “other banks” (S. 3) and imposing disabilities, penalties and restrictions of various kinds on “non notified banks”, the Act encroached on Entry 38. In the view we take of the complaint of encroachment on Entry 28, it is not necessary for the decision of these appeals to deal with the argument advanced with reference to Entry 38. It was contended that the rules enacted in S. 32, 79 and 80 of the Negotiable Instruments Act were among the essential of the law relating to promissory notes and that the pro-visions of Ss. 30, 36 and 38 of the impugned Act affect them so substantially that it would be impossible to regard them as merely amounting to an incidental encroachment on the law relating to promissory notes. This contention is in our judgment well-founded.

17. The Advocate-General of Bengal could not deny that the encroachment if any, was serious and substantial, but he contended that in view of the collocation of the several kinds of documents grouped together in Entry 28, the scope of that entry must be limited in two ways—first, by assuming that it related only to negotiable instruments and secondly, as an interference from this limitation, that it related only to so much of the law as bore upon the negotiability of such instruments. On this assumption he maintained that the impugned Act did not encroach on Entry 28 of List I and he endeavoured to show that the Act had carefully refrained from touching the principle of negotiability or the consequent rights of holders in due course. Stressing the distinction between the endorsement of a note and the assignment of the debt evidenced by the note, the Advocate-General endeavoured to point out that the Act limited itself to a regulation of the rights of the assignees of the debt and never dealt with the rights of the endorsees of the note, and particularly of the rights of holders in due course. He further contended that the rights as between the promisor and the promisee, including the right to interest, were only matters pertaining to the Law of Contracts and should not be held to be comprised in Entry 28 of List I. We are unable to accede to this argument. The Entry expressly refers to “cheques bills of exchange and promissory notes” and then adds “and other like instruments”. Whatever may be the result of construing these added words in the light of the ejusdem generis rule, we see no warrant for limiting the three specified categories of documents to instruments which are negotiable. Non-negotiable promissory notes are known to the law and are recognised by the Negotiable Instruments Act Some of the provisions of the Negotiable Instruments Act specifically refer to “negotiable instrument”: but other sections refer to “promissory note, bill of exchange or cheque” and there is no justification for limiting these latter provisions to only such documents as are negotiable. Even it it were possible to limit Entry 28 to negotiable instruments, there is no justification for importing the further limitation that this Entry relates to only so much of the law as bears on the negotiability of such instruments and its consequences.

18. The Advocate General drew our attention to certain observation in Great West Saddlery Company v. The King and John Deere Plow Company Ltd., Wharton  and contended that they recognised the possibility of provincial legislation being valid and operative to a certain extent even as against companies incorporated under Dominion Laws. These observations must be understood in the light of the distinction in the Canadian case between the relation of S. 92 of the British North America Act to the powers conferred upon the Dominion Parliament by the general words “peace, order and good government” of Canada in S. 91 and the relation of the provincial legislature to the topics exclusively assigned to the Dominion Parliament by specific enumeration in S. 91.

19. We may add that in the view that we take as the scope of Entry 28 in List I, the attack against the impugned provisions of the Bengal Act will not met by treating them as legislation with respect to contracts (Entry 10 of List III) because sub S. (2) of S. 100 makes even legislation on List III matters “subject to the preceding subsection.” whenever such legislation is enacted by a provincial legislature

20. The appeals are allowed and the case will be remitted to the High Court at Calcutta with a declaration that in place of the present decrees, revised decree for amounts found due according to the terms of the promissory notes after giving due credit for payments shall be substituted. The revised decree will also provide for the costs of the Appellant in the High Court and in the Court of First instance.

21. The appellant is entitled to costs here. In view of the pettiness of the amounts involved in these cases and of the circumstances in which the appellant had to bring them to this Court we considered that this is a fit case for directing payment of a sum in gross in lieu of taxed costs (O. 35, R. 5). We fix the total amount at Rs. 1,400 and dividing it equally between the seven cages, we direct the respondent (or respondents) in each case to pay Rs. 200 to the appellant for the costs of the appeal.

22. Leave to appeal to His Majesty in Council is granted.