Skip to content


Kasabai Wd/O Kashinathappa Lingayatwani and ors. Vs. Metilal Ramratan Rathi and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai High Court
Decided On
Case NumberFirst Appeal No. 188 of 1974
Judge
Reported in1982(2)BomCR195
ActsBombay Money Lenders Act, 1946 - Sections 5, 10(2) and 11; Evidence Act, 1872 - Sections 114
AppellantKasabai Wd/O Kashinathappa Lingayatwani and ors.
RespondentMetilal Ramratan Rathi and ors.
Appellant AdvocateV.M. Golwalkar, Adv.
Respondent AdvocateK.H. Deshpande and ; Varsha Wagh, Advs.
DispositionAppeal dismissed
Excerpt:
civil - license - sections 5, 9, 10 and 11 of bombay money lenders act, 1946 - plaintiffs given certain time by trial court to obtain and produce money-lenders license for obtaining money decree against defendants - money lenders-license submitted and money decree passed - defendants contended that license did not specify period from which it commenced but period of expiry mentioned - license did not cover period of transaction and decree could not be passed under section 10 - license under section 10 (2) to be obtained in manner specified in other provisions of act - not refer to any specified period and not carve out any exception to provisions of section 9 - even trial court not ordered production of money lenders license for particular period - neither any material produced nor any..........time. the court was pleased to extend the time only by one month and it appears that before that date money-lenders license in form no. 3 (rule 9) of the bombay money lenders rules, 1959, formed under section 39 of the act of 1946 was filed at ex. 83-a. on 16-2-1974, the trial court was pleased to pass the decree in terms of the judgment. this license (ex. 83-a) does not in terms specify the period from which it commence but the period of expiry is mentioned as being the end of the july 1974. the argument is as license does not cover the period of transaction, the decree could not be passed in view of section 10 of the act of 1946.3. section 10 reads as under :---'10(1) after the expiry of six months from the date on which this act comes into force, no court shall pass a decree in.....
Judgment:

V.A. Mohta, J.

1. In this appeal by original defendants against whom a money decree for Rs. 8000/- has been passed, an interesting question as to the construction of section 10(2) (as it stood before Maharashtra Act No. 76 of 1975) of the Bombay Money-Lenders Act, 1946 ('The Act of 1946' for short) has been raised on behalf of the appellants by their learned Counsel Shri Golwalkar.

2. Before dealing with the point it will by necessary to state few undisputed positions against backdrop of which the point arises. The plaintiffs filed a suit against the defendants for specific performance of contract in respect of field property or in the alternative for recovery of Rs. 14,000/-. The defendants raised many points, inter alia, contending that no real agreement of sale had taken place and that the so called agreement of sale, as a matter of fact, was an outcome of money-leading transaction under which the plaintiffs advanced to the defendant a sum of Rs. 4,000/- with agreement to receive back the principal and 1/4th of the amount by way of interest, in the next season. The trial Court accepted the defence that no real agreement of sale had taken place and that there was a money-lending transaction between the parties. However, money decree for Rs. 8,000/- (which was the amount mentioned in the document as earnest money) was passed rejecting the defence that the said double amount was mentioned only to pressurise the debtor. The trial Court did not grant any past interest but ordered payment of future interest at Rs. 3/- per cent per annum from the date of decree till realisation. Proportionate costs were also saddled on the defendants. The judgment was delivered on 18th October, 1973, and the plaintiffs were given three months' time 'to obtain and produce money lender's license.' Decree was to be passed only on producing the license. The plaintiffs applied for extension of time to produce money-lender's license on the ground that though they had already applied for the license immediately as per the order passed by the Court, it was not then granted. This application dated 17-1-1974 prayed for additional three months time. The Court was pleased to extend the time only by one month and it appears that before that date money-lenders license in Form No. 3 (Rule 9) of the Bombay Money Lenders Rules, 1959, formed under section 39 of the Act of 1946 was filed at Ex. 83-A. On 16-2-1974, the trial Court was pleased to pass the decree in terms of the judgment. This license (Ex. 83-A) does not in terms specify the period from which it commence but the period of expiry is mentioned as being the end of the July 1974. The argument is as license does not cover the period of transaction, the decree could not be passed in view of section 10 of the Act of 1946.

3. Section 10 reads as under :---

'10(1) After the expiry of six months from the date on which this Act comes into force, no Court shall pass a decree in favour of a money-lender in any suit filed by a money-lender to which this Act applies unless the Court is satisfied that at the time when the loan or any part thereof to which the suit relates was advanced, the money-lender held a valid license.

(2) If during the trial of any such suit, the Court finds that the money lender had not held such license, the Court may, on the application of the money-lender stay the hearing of the suit and require him to produce within a period of three months a license on payment to the Registrar of all the arrears of the license fees and the inspection fees payable by him under this Act for the period commencing from the date on which he started the business of money-lending or the expiry of six months form the date on which this Act comes into force, whichever is later, together with such penalty, not exceeding Rs. 500/, as the Court may direct.'

Provided that when the Court is satisfied that the failure of the money-lender to obtain a license was due to any reasonable cause the Court may direct that no penalty as aforesaid or part of such penalty shall be paid by the money-lender.

(3) The Court may, on sufficient cause being shown, from time to time extend the period during which the money-lender shall be required to produce a license.

(4) If the money-lender fails to produce the license required under sub-section (2) within the period specified therein or within such period as may be extended under subsection (3), the Court shall dismiss the suit. If the money-lender produces such license within the aforesaid period, the Court shall proceed to hear the suit.

(5) Nothing in this section shall affect---

(a) suits in respect of loans advanced by a money-lender before the date on which this Act comes into force;

(b) The powers of a Court of Wards, or an official Assignee, a receiver, an administrator of a Court under the provisions of the Presidency-Towns Insolvency Act, 1909, or the Provincial Insolvency Act, 1920 or any other law in force corresponding to that Act, or of a liquidator under the Companies Act, 1956, to realise the property of a money-lender.'

Section 10(1) imposes a ban on passing of the decree in respect of a loan to which the suit relates unless on the date of the advancement of the loan, the money-lender 'held a valid license'. However, sub-section (2) permits the Court to grant an application of a money-lender to stay the hearing of the suit to enable him to produce a license within a specified period. It was contended that the following words used in sub-section (2):

'for the period commencing from the date on which he started the business of money-lending.'

Were referable to the 'license' and not to the 'payment of arrears of the license and inspection fees payable under the Act.'

4. To appreciate this point which in the first flush does appear attractive, it will be necessary to examine certain other relevant provisions of the Act of 1946. Section 5 deals with the ban on carrying money-lending business except after obtaining a license and that too on certain terms and conditions specified therein. Section 6 deals with application for license. Section 8 deals with refusal of issue of license and section 8A deals with the Registrar's power to cancel licenses. Then follows section 9 which deals with 'Terms of license'. It reads as under :

'9. A license shall be valid from the date on which it is granted to the 31st day of July following :

Provided that when an application for renewal of a license has been received by an Assistant Registrar within the prescribed period, the license shall until the application is finally disposed of, be deemed to be valid.'

A bare look at section 9 will indicate that license is valid only from the date on which it is granted and cannot have any retrospective operation. No doubt, section 6 deals with the rule making power for fixing a date before which an application has to be made in the prescribed from. Rule 5(2) mentions that application for the grant of a license for the first time may be made on any date and an application for renewal of license has to be made on any date within three months prior to the expiry of the license. Section 6(4) as it stood then, gives a relaxation in respect of the period for application provided it accompanies a license fee at double the rates specified in sub-section (3). The combined reading of these provisions will only indicate that even after this period, an application can be made but on payment of double fees. This does not mean that even after expiry of period of license an application is permissible. It has no over-riding effect on section 9. The perusal of the relevant rules as well as the form of application (Form No. 2) in respect of application for the grant of license to a money-lender and Form No. 3 in respect of money-lender's license, will also indicate the total absence of intention to give any retrospective effect to the licensee.

5. It is in this light and background that provisions of section 10 have to be examined. Section 10(1) under which a ban has been imposed on the Court for passing a decree in favour of a money-lender in the absence of a license on the date of transaction, is subject to the next following sub-section (2). These provisions in terms contemplate a situation of a money-lender not holding a license on the date of the transaction. A money-lender is given the liberty to move for stay and to obtain license even subsequently. But, whether to grant license or not to grant, is a power exclusively belonging to the Registrar. It is difficult to imagine under what provision of law the Registrar can grant a license retrospectively in the teeth of the provisions of section 9. The argument is that section 10(2) gives this authority to the Registrar. It is not possible for me to accept this interpretation of the section. It seems to me that the period mentioned in this sub-section is no referable to the license but to 'all the arrears of the license fees and inspection fees payable by him under this Act'. This is clear not only from the placement of the relevant words but also from the use of the words 'together with such penalty, not exceeding Rs. 500/-, as the Court may direct' immediately thereafter. I see clear legislation intention of compelling the money-lender to pay charges even for a prior period to enable him to obtain a license under this section. As this stage, useful reference may be made to section 11. It refers to an application by a money-lender interested in getting a license as required under sub-section (2) of section 10. Even such license has to be obtained in the manner specified in other provisions of the Act of 1946. It also does not refer to any specified period, and does not carve out any exception to the provisions of section 9.

6. My attention was invited on behalf of the appellants to the decision in Kanbi Harji Hira Dubasia v. Kanbi Vasta Arjan Limani : AIR1977Guj189 . Considerable emphasis was rightly laid on the following observations :---

'It is open to a money-lender to apply for a license for a past period on payment of the arrears of the license fees, but is does not mean that as soon as the arrears of the license fees are paid, the Registrar is bound to grant a license for the past period. In other words, whereas Mr. K.N. Mankad has tried to read the expression 'for the period commencing from the date on which he started the business of money-lending' with the expression 'on payment to the Registrar of all the arrears of the license fees and the inspection fees'. On proper construction of sub-section (2) of section 10, we find that the expression 'for the period commencing from the date on which he started the business of money-lending...' .....goes with the expression 'a license' and qualifies it. That expression does not go with the expression 'all the arrears of the license fees' nor does it qualify that expression. Therefore, on a true construction of sub-section (2) of section 10 we are of the opinion that it is open to a money-lender to apply for a license for the past period commencing from the date on which he started the business of money-lending or the expiry of six months from the date on which the Act came into force on payment all the arrears of the license fees. It confers a right upon a money-lender who has carried on his money-lending business without holding a valid license to apply for a license for the past period in order to validate the transactions of money-lending which he had entered into with his debtors.'

It is true that these observations support the appellant. However, with great respect to the learned Judges of Gujarat High Court, it is not possible for me to agree with the same, the reason being that apart from the different context in which the observations were made, the judgment proceeds on the assumption that license can be granted retrospectively. It does not appear that provisions of section 9 and the connected sections were brought to the notice of the learned Judge in this particular shade, perhaps because the controversy there was of a different nature. In that decision as rightly pointed out by Shri Deshpande, the learned Counsel for the respondents, the main point involved was as to whether as soon as the payment of past fees etc., is made, the Registrar is bound to grant license and in case it is not granted whether the license can be deemed to have been granted to enable a Court to pass a decree. The argument that the Registrar was bound was rejected, as will be seen from the very opening lines referred to above.

7. My attention was invited to the Full Bench decision of this Court in the case of Hajarimal v. Harinarayan 1965 Mh.L.J. 797. This was a decision under the C.P. and Berar Money-Lenders Act, 1934 ('The Act of 1934' for short) which held the field in this area before application of the Act of 1946. Section 11-H of the Act of 1934 no doubt refers to the terminology 'holds' as against the terminology 'held' used in the Act of 1946. Construing the terminology used in section 11-H in the Act of 1934, the Full Bench held that the suit could not be dismissed only because at the relevant time money-lender did not hold the license. Section 11-H in terms provided for a ban on proceeding with the suit in the absence of holding a license and the scheme was construed as to mean that as soon as license is obtained even during the pendency of the suit, the suit can proceed. Distinction was drawn between holding the document in the past and holding it in the present by the Full Bench. In this very connection, reference to another Full Bench decision in the case of Mohamad Salem v. Umaji A.I.R. 1955 Hyd 113 was also made. It seems to me that the controversy which was set at rest by the Full Bench decisions has no relevance in the present matter. The answer to the question raised principally depends upon construction of sub-section (2) of section 10 of the Act of 1946 in the context and background of the entire scheme of the Act of 1946 in general and section 9 in particular.

8. It is next argued that no construction which would defeat the letter and spirit of section 5 of the Act of 1946 which imposes a total ban on carrying on money-lending transaction without a license is permissible. In support, decision given in Surajmull v. Triton Insurance Co. , was relied upon. Now, in the present case, there is no question of 'enforcing as valid, that which competent enactment have declared shall not be valid'; for no particular section of an enactment can be read in isolation. All the provisions of the Act have always to be read together and in the context of each other. Sub-section (2) of section 10 itself serves out an exception operating upon certain eventuality and consequences of not having a money-lending license on the date of the transaction. By Maharashtra Act No. 76 of 1975, this concession granted to the money-lenders has been withdrawn and sub-section (2) of section 10 itself has been deleted from the statute book. It is a common ground that the present matter will be governed by Act of 1946 before this amendment. In case the intention of the Legislature was to carve out an exception in respect of retrospective licenses to be obtained under sub-section (2) of section 10, there would have been a clear mention to that effect at least in section 11 which contains a special provision for the same. Moreover, nothing prevented the Legislature from putting the words 'for the period commencing from the date on which he started the business of money-lending' just after the words 'require him to produce within a period of three month this a license', in section 10(2). The separation of these two terminologies gives a clear indication against the interpretation sought to be put on behalf of the appellants.

9. For all these reasons, it seems to me that the production of Ex. 83-A was a substantial compliance of the judgment recorded by the trial Court. Passingly, it may be noticed that even the trial Court has not ordered production of a money-lenders license for a particular period.

10. Law will presume that the Registrar has granted the license only after satisfaction about compliance of the conditions preceded. Reference may be made in this connection to illustration (e) to section 114 of the Evidence Act. Neither any material has been produced before me nor has any grievance been made that the license was granted in violation of any of the conditions precedent. It is obvious that when the trial Court passed the decree, it was satisfied that there was a compliance with the operative part of the judgment.

11. It was also contended that under the circumstances the trial Court should have not granted costs in favour of a money-lender for which ample discretion is left with the Court in terms of section 21 of the Act of 1946. Grievance was made even about the grant of interest. But, it is apparent that the trial Court has not granted any past interest and what has been granted is only a future interest and that too at the meagre rate at 3 per cent 26 per annum. Granting or refusal of costs is within the discretion of the trial Court. It cannot be said that the discretion has been exercised so wrongly as to need interference at appellate stage.

12. No other point was raised.

13. For all these reasons, I see no merit in the present appeal which is dismissed but under the circumstances without any order as to costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //