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Kalapnath Singh Vs. Surajpal Singh and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1949All425
AppellantKalapnath Singh
RespondentSurajpal Singh and ors.
Excerpt:
- - i do not think that this period or this number would justify me in (holding that the requirements of the definition of the term 'creditor' in clause (7) of section 2, agriculturists' relief act, were satisfied......and imply uniformity of dealings, a certain degree of routine in business practice.4. the term 'money-lending business' came to be considered in various english and indian cases and reference may be made to the decision in edgelow v. macelwee (1918) 1 k.b. 205 where maccardie j, observed as follows:a man does not become a money-lender by reason of occasional loans to relations, friends or clients, whether interest is charged or not.... nor does a man become a money-lender merely because he may upon one or several isolated occasions lend money to a stranger. there must be more than occasional and disconnected loans. there must be a business of money-lending and the word 'business' imports the notion or system, repetition and continuity....5. again, in litchfield v. dreyfus (1906) l.....
Judgment:

Mushtaq Ahmad, J.

1. This is a plaintiff's appeal arising out of a suit for recovery of money on root of two mortgage bonds executed in his in by the defendants-respondents. The only question argued before me was that the lower appellate Court was not justified in admitting as additional evidence copies of two decrees standing in the name of the appellant's son and filed by the respondents in that Court in order to show that the appellant was a creditor within the meaning of the Agriculturists' Belief Act.

2. The appellant had admittedly not maintained accounts or furnished copies of them to the defendants as required by Section 34 of the said Act. The question was whether in such circumstances he was liable to forfeit interest and also costs in the present suit. The trial Court found that the plaintiff-appellant was not a creditor and consequently decreed the suit with costs an appeal the respondents filed copies of the two decrees, one of 1943 and the other of 1945, as additional evidence, and on the basis thereof and also in consideration of the defendants' statement that the plaintiff had advanced a loan to one Nakchand the lower appellate Court came to the conclusion that the plaintiff was a 'creditor' within the meaning of the Agriculturists Relief Act, The term 'creditor' is defined in Clause (7) of Section 2 of the Act as 'a person who, in the regular course of business, advances a loan as [defined in this Act,' etc. etc. Even if the lower appellate Court was justified in admitting the decrees referred to above as additional evidence in appeal, the question still remains whether, in view of the number of transactions of loan proved in this case and also having regard to the entire period covered by them, it could be said that the plaintiff was a person who, 'in the regular course of business', was found to be advancing loans. Both the mortgage deeds which were the basis of the suit were of the year 1931, one of the two decrees filed as additional evidence was of 1943 and the other of 1945. We do not know when the alleged debt to Nakehand was advanced by the plaintiff. The position, (therefore, was that over a period of about 15 years there were no more than four transactions of loan entered into by the plaintiff either in his or in his son's name. I do not think that this period or this number would justify me in (holding that the requirements of the definition of the term 'creditor' in Clause (7) of Section 2, Agriculturists' Relief Act, were satisfied.

3. The expression 'regular course of business' has not been defined in the Agriculturists Belief Act. In Sections 16 and 32(2), Evidence Act, we have the words 'ordinary course of business' and in Section 114 of the same Act we have the words 'common course of business'. The expression 'usual course of business' is also found in certain sections of some of our Acts. These expressions are not statutorily defined in any one of these Acts, but there can be no doubt that they all indicate and imply uniformity of dealings, a certain degree of routine in business practice.

4. The term 'money-lending business' came to be considered in various English and Indian cases and reference may be made to the decision in Edgelow v. MacElwee (1918) 1 K.B. 205 where MacCardie J, observed as follows:

A man does not become a money-lender by reason of occasional loans to relations, friends or clients, whether interest is charged or not.... Nor does a man become a money-lender merely because he may upon one or several isolated occasions lend money to a stranger. There must be more than occasional and disconnected loans. There must be a business of money-lending and the word 'business' imports the notion or system, repetition and continuity....

5. Again, in Litchfield v. Dreyfus (1906) l K.B. 584 it was remarked that:

Speaking generally, a man who carries on a money-lending business is one who is ready and willing to lend to all and sundry provided they are from his point of view eligible.

6. There is again, a very significant observation on the point by Lord Morris in Granger & Sons V. Gouch 1896 A.C. 325, to the following effect:

7. There can be no definition of the words 'exercising a trade:

It is only another mode of expressing 'carrying on business'; but it certainly carries with it the meaning that the business or trade must be habitually or systematically exercised and that it cannot apply to isolated transactions.

8. The question arose in a case decided by a special Bench of the Court in In the matter of Bhairo Dutt Bhandari, an advocate, Banikhet : AIR1940All1 where the meaning of the' words 'money-lending business' was considered in connection with the conduct of a legal practitioner. The learned Judges in that case held that:

An element of continuity and habit is essential to constitute the exercise of a profession or business. Investments of his savings by an advocate do not necessarily amount to engagement in money-lending business, the more so when such investments are few and far between.

9. I may mention here that in the present case also the plaintiff was a lawyer, being a mukhtar practising at Jaunpur.

10. A consideration of these authorities undoubtedly leads to the conclusion that the two (elements essential for the constitution of a money-lending business are, (1) its continuity (and (2) the length of the period covered by it. (As I have already pointed out, neither of these (two elements is, in my opinion, present in the case before me, and I am constrained to hold that the plaintiff could not be regarded as 'a person who in the regular course of business advances a loan' as defined in the Agriculturists'Relief Act, and, therefore, a creditor within the meaning of Clause (7) of Section 2 thereof.

11. In this view of the matter, I am unable to uphold the decree of the lower appellate Court which I hereby set aside and restore the decree of the trial Court with costs throughout. Leave to appeal under the Letters Patent is refused.


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