Sen, J.

1. The only point for determination in this application iswhether the protection given to assignees by Sub-section (5) of Section 36,Bengal Money-lenders Act, extends to an assignee who took his assignment beforethe Act. On 26th August 1935, Debendra Nath Ash borrowed the sum of Rs. 15,501from Srimati Kumudmoni Dassi and deposited the title deeds of certain propertybelonging to him with her as security for the loan. The loan carried interestat 10 per cent. Kumudmoni assigned her rights under this mortgage to BhupendraNath Dutt for consideration on 11th April 1938. Bhupendra Nath Dutt instituteda suit against Debendra and obtained a preliminary mortgage decree on 21stMarch 1940. He now applies for a final decree. Debendra Nath Ash has appliedunder Section 36, Bengal Moneylenders Act, for relief on the ground that theinterest payable on the mortgage is above the maximum allowed by Section 30 ofthe aforesaid Act. Both applications have been heard together. The plaintiffcontends that no relief can be granted to the mortgagor as the plaintiff isprotected by the provisions of Section 36(5), Bengal Money-lenders Act. Thesection runs as follows:

Nothing in this section shall affect the rights of anyassignee or holder for value if the Court is satisfied that the assignment tohim was bona fide, and that he had not received the notice referred to inClause (a) of Sub-section (1) of Section 28.

2. Now the relief claimed by the mortgagor can be grantedonly by the aid of the terms of Section 36 and if this section does not affectthe rights of the plaintiff then the mortgagor can get no relief. It has beenestablished and indeed it is not challenged before me that the plaintiff is abona fide assignee for value. As the assignment was made long before the Act,no notice as prescribed by Section 28, Sub-section 1(a) was given or could havebeen given to him. In these circumstances, can it be said that he is anassignee of the kind described in Sub-section (5) I can see no reason why heshould not be considered to be such an assignee. As assignee is protected bythis sub-section if he can establish that he has two qualifications : (1) Thathe is a bona fide assignee for value, and (2) that he has not received thenotice referred to in Clause (a) of Sub-section (1) of Section 28. Both thesequalifications are present in the plaintiff and he is therefore entitled toclaim the benefit of Section 36(5).

3. It was pointed out on behalf of the mortgagor that thescheme of the Act is to place assignees in the same position as originalcreditors so far as the operation of the Act is concerned. The intention behindSection 36(5), it is said, is to give protection only to assignees whoseassignments originated after the Act; it was contended that the provisionregarding notice, made it plain that Sub-section (5) of Section 36 contemplatedonly post-Act assignees inasmuch as an ante-Act assignee could not possiblyhave received such notice. I was referred to Sections 28 and 29 and was toldthat if these sections were read together with Section 36(5) this intentionwould become perfectly plain. Now, Section 28 deals with assignments after theAct of loans advanced both before or after the Act; it provides that theassignor shall give notice to the assignee that the debt is affected by theoperation of the Act when the debt is so affected. This is followed by a threatthat any contravention of the section would entail punishment by imprisonment.I must express my sympathy with the assignor. He has no easy task to perform. Ihave often found it difficult to decide what debts would be affected by the Actand from the reports it seems that the same difficulty has been experienced bysome of my learned brothers. It is hardly fair to impose upon a lender inaddition to his other burdens the duty of deciding which debts would beaffected by the Act. Any how, this section does not help at all in deciding thequestion involved. I now turn to Section 29. It consists of two parts.Sub-section (1) deals with loans advanced after the Act and Sub-section (2)with loans advanced before the Act. In both cases the assignee is made subjectto the same conditions as are imposed by the Act on the original creditor.

4. There is a proviso to Sub-section (1) which says that"any agreement with, or security taken by, a lender or money-lender inrespect of a loan advanced by him after the commencement of the Act shall bevalid in favour of any bona fide assignee or holder for value without notice ofany defect due to the operation of the Act and of any person deriving titleunder him." There is no such proviso to Sub-section (2) which deals withloans advanced before the Act. What this proviso exactly means and why it hasbeen introduced are matters which I find it difficult to appreciate. I am notcalled upon to construe it now. All I need say is that the absence of such aproviso to Sub-section (2) does not necessarily indicate that an assignmenteffected before the Act is not protected by Section 36 (5). Sub-sections (1)and (2) of Section 29 make separate provisions for post-Act and ante-Act debtsrespectively but they do not differ-jentiate between post-Act and ante-Actassignments. Sub-section (2) would apply to both kinds of assignments. I havenot been able to find anything in the Act which would compel me to hold thatSection 36(5) contemplates only post-Act assignees. To give the sub-sectionsuch a meaning would be to re-draft it by adding the words underlined (hereitalicized) : "(5) Nothing in this section shall affect the rights of anyassignee or holder for value to whom the debt had been assigned after the Actif the Court is satisfied that the assignment to him was bona fide, and that hehad not received the notice referred to in Clause (a) of Sub-section (1) ofSection 28.

5. In applying an Act which takes away vested rights andcurtails freedom of contract in order to give relief to a particular class, oneshould guard against giving it an interpretation which would extend its scope.The terms of the Act should be interpreted literally and strictly. I do not saythis in any caviling spirit. It is no part of my business to comment upon thepolicy of a statute. I am merely to interpret and apply it. All that I wish topoint out is that an Act of this nature will necessarily contain provisionsWhich are arbitrary and disjointed otherwise it will fail in its very objectwhich is to relieve persons of certain contractual liabilities which hithertowere enforceable against them under the law. In such an Act one cannot expectto find any consistent principle binding all the different sections together.To a large extent the Act must be in the nature of patch work and one shouldnot seek for symmetry and design in its composition. Each patch should first beexamined independently in order to understand its utility and purpose; it isonly when such an examination does not disclose its purpose that recourseshould be had to the other portions of the Act. An attempt to blend the patchesinto a design in circumstances other than the above would only lead one toprofitless speculation and uncertainty. Taking Section 36(5) as, stands andwithout attempting to make it consistent with some imaginary general scheme byreading into it some-thing which is not there, I come to the conclusion that itapplies to both "ante-Act" and "post-Act" assignees. In theresult the application under the Bengal Money-lenders Act must be dismissedwith costs and the application for a final, decree must be allowed also withcosts.

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Bhupendra Nath Dutt vs. Debendra Nath Ash and Ors.(26.08.1941 - CALHC)