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Kanhaiyalal Jagannath Vs. Vilayatkhan Jamdarkhan and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMadhya Pradesh High Court
Decided On
Case NumberCivil Revision No. 203 of 1955
Judge
Reported inAIR1958MP63
ActsDebt Law; Madhya Bharat Money-lenders Act, 1950 - Sections 22; Jhabua State Agriculturists Relief Act; Constitution of India - Article 254
AppellantKanhaiyalal Jagannath
RespondentVilayatkhan Jamdarkhan and anr.
Appellant AdvocateS.D. Sanghi, Adv.
Respondent AdvocateD.P. Vaidya, Adv. for Opposite No. 1
DispositionPetition dismissed
Excerpt:
.....implication without some strong reason. consequently, as we have already indicated, the intent to repeal must clearly appear, and such a repeal will be avoided if at all possible. this presumption against the intent to repeal by implication rests upon the assumption that the legislature enacts laws with a completed knowledge of all existing laws pertaining to the same subject so that the failure to add a repealing clause indicates that the intent was not to repeal any existing legislation. section 16 provides for inclusion of all outstanding debts in future in a single suit by a creditor against a debtor and further provided that) on failure on the part of the creditor to do so he will be deemed, to have permanently waived the claim thus omitted. require the creditors to produce their.....ordernewaskar, j. 1. only question raised in this revision petition is whether the madhya bharat money lenders act repeals jhabua state agriculturists relief act? 2. the trial court held that the madhya bharat act aforesaid does not repeal the jhabua act. the learned trial judge took into consideration two circumstances. firstly, it is said, that in the repealing clause in the madhya bharat act there is direct reference to money lenders act gwalior state, samvat 2003, indore money lenders act, no. v of 1938 and sahukari sambandhi vidhan dewas junior, 1943, but no direct reference to the aforesaid jhabua act and secondly it is said that the preamble of the madhya bharat act indicates that the act was designed to control and regulate the transactions of money lending in madhya bharat.....
Judgment:
ORDER

Newaskar, J.

1. Only question raised in this revision petition is whether the Madhya Bharat Money Lenders Act repeals Jhabua State Agriculturists Relief Act?

2. The trial Court held that the Madhya Bharat Act aforesaid does not repeal the Jhabua Act. The learned trial Judge took into consideration two circumstances. Firstly, it is said, that in the repealing clause in the Madhya Bharat Act there is direct reference to Money Lenders Act Gwalior State, Samvat 2003, Indore Money Lenders Act, No. V of 1938 and Sahukari Sambandhi Vidhan Dewas Junior, 1943, but no direct reference to the aforesaid Jhabua Act and secondly it is said that the preamble of the Madhya Bharat Act indicates that the Act was designed to control and regulate the transactions of money lending in Madhya Bharat whereas the preamble to the Jhabua Act indicates that it was designed to prevent money-lenders from taking undue advantage of the illiterate and ignorant condition of the agricultural, class and that as there is this material difference in the underlying objects of the two Acts the Madhya Bharat Act does not repeal Jhabua Act which is continued by the Continuance of Laws Act Madhya Bharat, 1948.

3. The question under consideration arose under the following circumstances.

4. Plaintiffs Vilaytkhan and his son Hussainkhan claiming to be the agriculturists filed a suit on 23-11-1953 for accounts against their creditor Kanhaiyalal under Section 5 of the Jhabua. Agriculturists Relief Act. At the trial the defendant denied that the plaintiffs were agriculturists. The trial Court thereupon considered this question as preliminary and found in favour of the plaintiffs. At this stage the defendant raised the contention that no suit for accounts under the Jhabua Act was competent as the said Act stood repealed by the Madhya Bharat Money Lenders Act, Samvat 2007. The trial Court thereupon considered this objection and over-ruled it as explained above.

5. The defendant preferred this revision petition, against this order contending that the trial Court could not proceed to try the suit Under the Jhabua Act which had been repealed on the date of the suit and that the trial Court had assumed jurisdiction by erroneously holding that the Jhabua Act is still in force.

6. Mr. Shambhudayal Sanghi who appeared for the petitioner contended that the way in which the learned trial Judge has approached this question was erroneous. In order to ascertain whether the Madhya Bharat Money Lenders Act, Samvat 2007 repeals the Jhabua State Agriculturists Relief Act it ought to have taken into account the following words in the repealing clause of the Madhya Bharat Act and all other Acts, Circulars and Standing Orders relating to the regulation and control of the transactions of money lending in any of the Covenanting States', and further it ought to have considered whether the Jhabua Act in effect purported to regulate and control the transactions of money lending in the Covenanting State of Jhabua.

For considering this latter question it ought to have read the two pieces of legislation as a whole side by side and not to have relied merely upon the difference in the actual wording of the preamble. The ultimate conclusion to which the learned Judge has arrived is, it is said, affected by this wrong approach and the order passed by him desires to be set aside.

7. On the other hand Mr. Vaidya for the plaintiffs contended that the conclusion to which the learned Judge has arrived is correct. It is difficult, according to the learned counsel, to say that the Jhabua Act was designed to regulate and control money lending. Under the Madhya Bharat Act and the three other Acts to which a direct reference is made in that Act there are clear provisions for regulating and controlling money lending whereas under the Jhabua Act all that is sought to be done is to clothe the Courts of Law with power to examine the transactions with agriculturists-debtors and to afford relief to them in appropriate cases.

There is no regulation or control, as such, of money lending. Even the term 'money-lender' is not defined and any transaction of money-lending whether stray or in the regular course of business of money lending with an agriculturist is not intended to be governed by the Act. The Jhabua Act therefore cannot be said to be covered by the expression in the repealing clause to which reference was made by the learned counsel for the petitioner.

8. Before considering the provisions contained in Section 22 of the Madhya Bharat Money Lenders Act and its effect upon the Jhabua Slate Agriculturists Relief Act it will be useful to make a brief reference to the principles which govern the cases of repeal express or implied. Where there is direct reference in the repealing clause to a particular Act no difficulty arises. Repeal in that case is express.

But where there is no direct reference the matter will have to be determined by taking into account the exact meaning and scope of the general words contained in the repealing clause and the principles of law which govern the interpretation of the same. Principles governing the cases of implied repeal can in such a case be called in aid to determine whether there is effective repeal of the earlier statute.

9. Maxwell on Interpretation of Statutes at page 173 says :-

' But repeal by implication is not favoured. A sufficient Act ought not to be held to be repealed by implication without some strong reason. It is a reasonable presumption that the Legislature did not intend to keep really contradictory enactments on the Statute-Book, or on the other hand, to effect so important a measure as the repeal of a law without expressing an intention to do so. Such an interpretation, therefore is not to be adopted, unless it is inevitable. Any reasonable construction which offers an escape from it is more likely to be in consonance with the real intention'.

10. Crawford on Construction of Statutes at pages 630-31 of 1940 Edition says:--

'As is thus apparent, the Courts do not look with favour upon implied repeals, and the presumption is always against the intention of the legislature to repeal legislation by implication. The absence of an express provision in a statute for the repeal of a prior law gives rise to this presumption, which is accentuated where the various statutes were enacted at the same session of the legislature. Consequently, as We have already indicated, the intent to repeal must clearly appear, and such a repeal will be avoided if at all possible.

This presumption against the intent to repeal by implication rests upon the assumption that the legislature enacts laws with a completed knowledge of all existing laws pertaining to the same subject so that the failure to add a repealing clause indicates that the intent was not to repeal any existing legislation. This presumption, however, is overthrown if the new law is inconsistent with or repugnant to the old law, for the inconsistency or repugnancy reveals an intent to repeal the existing law. Similarly, when a statute specifically repeals certain acts or parts of an act, it will not be presumed that the legislature intended to repeal any act or any part of an act not mentioned.'

11. With these principles in mind I shall proceed to consider the material provisions of the Madhya Bharat Money Lenders Act which have the effect of bringing about the repeal of the Jhabua Act referred to above as also those of the Jhabua State Agriculturists Relief Act.

12. The preamble to the Madhya Bharat Act is as follows :--

'Whereas it is expedient to make provisions for the regulation and control of the transactions of money-lending in the United State of Gwalior, Indore and Malwa (Madhya Bharat), it is hereby enacted as follows.'

13. Under Section 1 (5) the Act is to be applicable to those money-lenders who advance loans to agriculturists in the regular course of their business.

14. The term 'Money Lender' is defined under Section 2 (4) of the Act as follows :--

' 'Money Lender' means a person who, in the regular course of business, advances a loan as defined in this Act and shall include subject to the provision of Section 8 (2), the legal representatives and the successors in interest whether by inheritance, assignment or otherwise of the person who advances the loan.

Explanation:-- The word 'person' includes an association or body of persons whether incorporate ed or not.'

15. Sections 3 to 7 deal with registration of money lenders, issue of certificate of Registration to such money-lenders, duration of such certificates, remedy for an aggrieved money-lender against the order of the registration authority.

16. Section 8 of the Act is as follows :--

'(1) A money-lender registered under the provisions of the Money Lenders Act, Gwalior State. Samvat 2003, or the Indore Money Lenders Act. No. V of 1938, or Sahukar Sambandi Vidhan, Dewas State Junior 1943 or any other similar enactment for the time being in force in any of the Covenanting State shall be deemed to have been registered in accordance with the provisions of this Act. (2) Save as provided in Sub-section (1) no money-lender shall, after the expiration of three months from the date on which this Act is brought into force, carry on his business as money-lender without obtaining a registration certificate under Section 3'.

17. Section 9 requires every money lender to maintain accounts for each debtor and further requires him to furnish the debtor with copies thereof annually in the mariner indicated in the section. Section 12 provides that every money lender who receives repayment from his debtor ought to furnish him with a receipt thereof and to take signature of the debtor on its counterfoil.

Section 13 deals with procedure to be followed in Courts in suits regarding loans.

18. Section 14 deals with savings and is material. It reads as follows:

'The provisions of this Act shall not apply to any loan made before this Act comes into force except such loans as were advanced after the Money Lenders Act, Gwalior State, Samvat 2003, the Indore Money Lenders Act, No. V of 1938 or the Sahukar Sambandi Vidhan. Dewas Junior, 1943 or any similar enactment of any other Covenanting States came into force in the Covenanting States of Gwalior. Indore or Dewas Junior or such other Covenanting States respectively: Provided that, if any fresh transaction in respect of a loan made before this Act comes into force, is made after this Act comes into force, such transaction shall be subject to the provisions of this Act'.

19. Section 15 deals with power of the Court to limit interest recoverable in the case of loans. Section 16 deals with suits by debtors for accounts of debts, money paid by him and for determination of the amounts payable by him and creditor's right to get the declaratory determination converted into a money decree on payment of requisite court-fee. Section 17 deals with Court's power to direct payment of decretal amount by instalments. Sections 18 & 19 deal with the offences under the Act, penalties therefor and the authority by whom the offences are triable. Section 20 confers power upon Government to withdraw any Registration Certificate already granted to a money-lender and to prohibit any class of persons from carrying on money lending in particular area. It also provides for penalty for violation of the prohibition. Section 21 deals with rule making power of Government.

20. Section 22 is the repealing clause. It reads as follows:--

'As soon as this Act comes into force the Money Lenders Act, Gwalior State, Samvat 2003, The Indore Money Lenders Act, No. V of 1938, and Sahukar Sambandhi Vidhan, Dewas Junior, 1948 and ail other Acts, Circulars and Standing Orders relating to the regulation and control of the transactions of money-lending in any of the Covenanting States shall stand repealed: Provided that all orders given and actions taken under the aforesaid Acts, Circulars and Standing Orders shall be deemed to have been given or taken, as the case may be, under this Act.'

21. It will be clear from the aforesaid provisions that the Act is intended primarily for the protection of agriculturists as against those who in regular course of their business lend money to them. The business of money lending carried on by such a class is sought to be regulated and controlled by providing for registration of such money lenders and by requiring them during the course of their business dealings to maintain accounts, furnish copies thereof annually to the debtors and to issue receipts of payment.

The business of money lending is further sought to be controlled by empowering the Court to determine the liability of the debtor in a suit by him, to limit the amount of interest recoverable by the lender and creating penalties for violation of certain provisions under the Act which create duties for the money lender. Relief is! afforded to a debtor in straightened circumstances by directing payment by instalments and in the matter of high rate of contractual interest.

22. The protection afforded under the aforesaid Act to an agriculturist begins from the moment a money lender decides to deal with such debtors. It continues during the course of their dealings and various kinds of reliefs are provided for through the machinery of Court of law.

23. If we now examine the Jhabua Act aforesaid the preamble to the Act indicates that the Act is intended to prevent money lenders from taking undue advantage of Illiterate and indebted condition of the agriculturist classes.

24. Section 2 provides for the repeal of Acts, Council Resolutions and Circulars repugnant Or contrary to the Act.

Section 3 defines an agriculturist who is entitled to the benefits claimable under the Act; other terms such as 'money' and 'Standing crop' are also defined in this Section.

Section 4 indicates that the Act is applicable to four kinds of proceedings firstly to a suit by a debtor for accounts, secondly to a suit by a creditor to recover money, thirdly to a suit against the debtor on the basis of a mortgage and lastly to a proceeding in execution of a decree.

Section 5 enables an agriculturist debtor to secure determination of his dues through a Court of Law.

Sections 6 & 7 deal with procedure.

Section 8 empowers the Court to determine real nature of transaction although there might be a written agreement pertaining to it.

Section 9 further empowers the Court to scrutinise the transactions from their inception with a view to investigate and determine whether there is any fraud, undue influence, mistake in the course of those transactions.

Section 10 requires the creditor to produce his accounts and a statement derived therefrom indicating what sum was advanced as principal and what was charged as interest.

Section 11 provides for the mode of taking accounts including reopening of formally closed accounts to determine what was actually advanced and what interest is charged. It further indicates what interest is to be allowed and to what extent.

Section 12 empowers the Courts to afford reliefs in accordance with Section 11 even in the case of decrees where such accounts had not been taken during the course of suits.

Section 13 empowers the Courts to award instalments in suits for accounts under Section 9 or in money suits against the debtors.

Section 14 deals with interest allowable after the decree.

Section 15: all interest allowable is to be simple.

Section 16 provides for inclusion of all outstanding debts in future in a single suit by a creditor against a debtor and further provided that) on failure on the part of the creditor to do so he will be deemed, to have permanently waived the claim thus omitted.

Section 17 enabled the debtor to prove uncertified payments made by him towards a decree-debt.

Section 18 provided for rule making power.

Section 19 provides for penalty for dishonest entries in his account books by a creditor.

Section 20 provides for court-fee payable by the debtor and the creditor in a debtor's suit for declaration under Section 5 of the Act.

25. Thus the Act is primarily designed to afford relief to illiterate agriculturist debtors aa defined under the Act as against any person who lent money to them whether in the regular course of business or as a stray dealing. The relief is afforded only through a machinery Of Court of law. The Courts have been given sufficiently comprehensive powers to reopen dealings formally! closed, consider oral evidence as against written arguments to the contrary; require the creditors to produce their accounts and make presumptions against them if they fail to do and even scrutinise decree-debts when such a scrutiny is not made during the course of a suit and to grant relief as regards interest claimable under theagreement as provided and further to grant instalments.

Provision is also made so that in a single suit either by the debtor or by the creditor proper accounting can be made so as to enable the Court to grant relief to the debtor. No duties are prescribed under the Act for the money-lender. There are no provisions the direct purpose of which is to regulate and control money-lending. Even the term 'money lender' is not defined under the Jhabua Act.

26. It will thus appear that whereas the direct and primary object of the Jhabua Act is to afford relief to an agriculturist in his dealing with a lender through the machinery of a Court of law by means of scrutiny of his accounts scaling down interest payable under the agreement if it be contrary to what is allowable under the Act and awarding instalments, the direct and primary object under the Madhya Bharat Act is to regulate and control money lending.

Incidentally there are provisions which have the effect of affording a debtor relief taut what is regulated and controlled is the business of money lending. Persons who in the regular course of business wish to deal with the agriculturists debtors are required to get themselves registered. Duties are then cast upon them to maintain accounts, to give copies of their account with requisite details annually to the debtors and to give receipts for every payment made by the debtor.

The regulation and control begins from the moment a lender decides to deal with the debtors. This act, no doubt, as the other Acts is directed towards 'protection of agriculturists' but by that semblance alone it cannot be said that the two Acts are so similar in their object and scope that the later Act ought to be taken to have repealed the former. Even the provisions having some similarity such as one relating to suit for accounts by a debtor and the scrutiny of accounts therein are not identical in scope.

27. Coming to the actual provisions in the Madhya Bharat Act having a material bearing on the question of repeal. Section 22 which actually deals with it provides for the repeal of 'all other Acts, Circulars and Standing orders relating to regulation and control of the transactions of money lending in any Covenanting State.' The contents of an Act claimed to have been repealed by this provision must indicate that that Act was intended to regulate and control the transactions of money lending. In the Jhabua Act the transactions of money lending are not regulated and controlled.

What is done is that debtors who choose to come to Court and those who are sued in a Court of Law are afforded relief as provided in the Act. It is difficult to call the Jhabua Act as one directed towards regulating and controlling the transactions of money lending and in this view there is no express repeal. Nor can it be said that there is implied repeal because as is discussed earlier the two Acts are not so identical in their object and scope that the later might well be assumed to have repealed the earlier.

28. Section 14 which deals with the savings makes it clear that the aforesaid view is correct. This Section provides that the provisions of this Act are not to be applied to loans made before the commencement of the Act except such loans as were advanced after the Money Lenders Act, Gwalior State, Samvat 2003, Indore Money Lenders Act, 1938, Sahukar Sambandhi Vidhan, Dewas Junior, 1943 or any other similar enactment of any other State. Now in order that the MadhyaBharat Act should be applicable to a loan made before the Act the Jhabua Act ought to be similar to the aforesaid Act. 'Similar' would naturally mean similar in object and scope. It cannot be said that this is so.

29. Section 8 of the Madhya Bharat Act confirms this view. Registration under similar Act in any Covenanting State would imply existence of provision relating to Registration. This will make it clear in what sense the word 'similar' was used.

30. It therefore appears clear to me that there is neither express nor implied repeal of the Jhabua Act and for that reason the competency of suit under that Act cannot be challenged. The view taken by the Court below is correct.

31. The petition therefore has no force. It is accordingly dismissed with costs.


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