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Bakhtwar Ice Factory Vs. Chunilal Sonmal and Co. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai High Court
Decided On
Case NumberCivil Revision Application No. 2306 of 1957
Judge
Reported in(1958)60BOMLR1371
AppellantBakhtwar Ice Factory
RespondentChunilal Sonmal and Co.
DispositionApplication dismissed
Excerpt:
.....a 'loan to a trader' within section 2(9)(g)--whether 'loan to a trader' means loan to a trader for trading purposes--maintainability of application under section 30.;the expression 'loan to a trader' in section 2(9)(g) of the bombay money-lenders act, 1946, does not mean a loan to a trader for trading purposes.;in a suit on a promissory note filed against the defendant, who was a trader as defined in section 2(18) of the bombay money-lenders act, 1946, by the plaintiffs-moneylenders who held a licence under the act, the defendant applied under section 30 of the act for accounts. the plaintiffs contended that the application was not maintainable as the loan made to the defendant was a loan to a trader within section 2(9)(g) of the act and section 30 of the act was not, therefore,..........sub-clause is clause (g). it says:except for the purposes of sections 23 and 25,(i) a loan to a trader;'trader' is defined in section 2(18) and means, among others, 'a factory owner'. it is not disputed that the petitioner is a factory owner. as a matter of fact, the promissory note was signed by the firm of messrs. bakhtwar ice factory of which the petitioner is the sole proprietor. if this is a loan to a trader within the meaning of the act, then the provisions of the act except for the purposes of sections 23 and 25 would not apply to this case and section 30 permits a trader to make an application for accounts referred to in that section only in cases of loans to which the act applies. it is true that if i am satisfied that this is a loan to a trader, the application of the.....
Judgment:

M.C. Chagla, C.J.

1. This revision application arises out of a suit filed by the plaintiffs who are money-lenders and who hold a licence under the Bombay Money-lenders Act, 1946, to recover a sum of Rs. 5,000 odd against the defendants on a promissory note executed by the defendants. An application was made by the defendants under Section 30 of the said Act for accounts. The learned City Civil Court Judge held that the application was not maintainable and dismissed it. It is against that order that this revision application has been filed.

'Loan' is defined in Section 2(9), and that sub-section states 'loan' means an advance at interst whether of money or in kind, but it does not include...and the relevant sub-clause is Clause (g). It says:

except for the purposes of Sections 23 and 25,

(i) a loan to a trader;

'Trader' is defined in Section 2(18) and means, among others, 'a factory owner'. It is not disputed that the petitioner is a factory owner. As a matter of fact, the promissory note was signed by the firm of Messrs. Bakhtwar Ice Factory of which the petitioner is the sole proprietor. If this is a loan to a trader within the meaning of the Act, then the provisions of the Act except for the purposes of Sections 23 and 25 would not apply to this case and Section 30 permits a trader to make an application for accounts referred to in that section only in cases of loans to which the Act applies. It is true that if I am satisfied that this is a loan to a trader, the application of the petitioner under Section 30 would not be maintainable. What has been argued before me is that although the loan may be to a trader, it is open to the petitioner to urge and to prove that it was not for trading purposes, and my attention has been drawn to the averment made by the petitioner that the loan was not advanced to him for trading purposes. The short question therefore which. I have to consider is whether the expression 'loan to a trader' in Section 2(9)(g) means a loan to a trader for trading purposes. It will be immediately apparent that if I were to take that view, I would be adding something to the sub-section which the Legislature itself has not added. What is urged before me is that the expression 'loan to a trader' carries with it the connotation that it must be for trading purposes and if the loan is advanced to a trader for his personal needs or for any purpose other than for trading purposes, it will not be a loan to a trader for the purposes of the Act. If I have a doubt in my mind as to the proper interpretation of the sub-section, that doubt is removed when I look at the other instances of loan given in this sub-section. The most material is the instance given in Section 2(9)(g)(iii):

a loan, by a landlord to his tenant for financing of crops or seasonal finance, of not more than Rs. 50 per acre of land held by the tenant.

Now, here the Legislature not only indicates by whom the loan is to be made and to whom, but also the purpose of the loan. Now, take the case of Section 2(9)(e) which is a loan to or by a bank. No purpose is indicated and it cannot be suggested that only a loan to a bank for banking purposes would come within this sub-section. Therefore, looking to the whole scheme of Section 2(9), I am satisfied that where the purpose of the loan was to be considered, the Legislature has clearly indicated it. 'Where the purpose is immaterial, then the purpose is not indicated. Apart from that, it will be difficult to hold that if a moneylender advances a loan to a trader, he must satisfy himself as to the application of that loan by the trader. I do not know, if the contention urged by the petitioner were to be accepted, whether the lender should satisfy himself with the representation made by the trader or whether he should satisfy himself that in fact the loan had been utilised for trading purposes. Such an interpretation of the expression 'Loan to a trader' will lead to innumerable difficulties and anomalies, and the Legislature, realising that, gave a protection to the money-lender provided the loan was to a trader as defined in Section 2(9)(g) and if, as in this case, the loan is admittedly to a trader, Section 30 would not apply.

2. My attention was then drawn to the fact that the petitioner in this case would suffer grave injustice because one of the reasons why he applied for accounts under Section 30 was to satisfy the Court that the money-lender had charged excessive interest. I do not see any difficulty in the way of the petitioner, because Sections 23 and 25 have been made applicable even to a loan to a trader. Therefore, under Section 25 the money-lender cannot charge more than the maximum rate of interest fixed by a notification.

3. I am then told that this is a summary suit, and unless leave to defend was given, it would not be possible for the petitioner to prove that he has paid large amounts by way of interest which exceeded the maximum rate of interest. Now, I had an occasion to consider a summary suit filed under the Bombay Money-lenders Act. That was a case where all the sections applied and I had occasion to point out that certain duties are cast upon the Courts under the Bombay Money-lenders Act. In a summary suit to which the Bombay Money-lenders Act applied, unconditional leave to defend should be granted. That decision does not in terms apply to this case, because only Sections 23 and 25 are applicable to this loan. But I take it that the learned Judge, who will deal with the application for leave to defend, would give leave to the peitioner if he is satisfied that there is a prima facie case made out by the petitioner which required consideration by the Court. If the Court feels that there is the slightest possibility of the money-lender having charged more interest than the maximum rate of interest permissible under Section 25, then obviously the Court would grant unconditional leave to the petitioner.

4. The result is the revision application fails. Rule discharged with costs.


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