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Raghunath Prusti Vs. SauddIn Khan - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtOrissa High Court
Decided On
Case NumberCivil Revn. No. 260 of 1956
Judge
Reported inAIR1958Ori111; 24(1958)CLT28
ActsDebt Law; Orissa Money Lenders Act, 1939 - Sections 7 and 19; Orissa Money Lenders Rules - Rules 11 and 12; Code of Civil Procedure (CPC) , 1908 - Order 6, Rules 4 and 5 - Order 7, Rule 11; Evidence Act, 1872 - Sections 114
AppellantRaghunath Prusti
RespondentSauddIn Khan
Appellant AdvocateAsok Das, Adv.
Respondent AdvocateR.N. Sinha, Adv.
Cases ReferredBhikaji Keshao Joshi v. Brijlal Nandlal Biyani
Excerpt:
.....particulars. the order of the tribunal in dismissing the petition outright would be clearly erroneous. he clearly made a categorical admission that he violated the statutory provisions of the orissa money lenders act and that he had committed an offence punishable under section 19 of the said act......j.1. the defendant in a suit to recover money due to on a promissory note filed by a kabuli money-lender is the petitioner in this revision.2. the plaintiff's case is that the defendant executed a promissory note for rs. 340/- in his favour and he did not pay anything. he filed the suit to recover rs. 463/- claiming interest at 12 per cent per annum though the document did not stipulate for any interest.3. the defendant alleged that he did not borrow any money from the plaintiff; and that he borrowed money from one kabuliwala by name sadikhan who took a blank paper with his signature as security for the payment of the loan. he stated that the dues of sadikhan were paid by him, but the plaintiff having procured the blank paper from the said sadikhan with his signature has brought.....
Judgment:
ORDER

P.V. Balakrishnarao, J.

1. The defendant in a suit to recover money due to on a promissory note filed by a Kabuli Money-lender is the petitioner in this revision.

2. The plaintiff's case is that the defendant executed a promissory note for Rs. 340/- in his favour and he did not pay anything. He filed the suit to recover Rs. 463/- claiming interest at 12 per cent per annum though the document did not stipulate for any interest.

3. The defendant alleged that he did not borrow any money from the plaintiff; and that he borrowed money from one Kabuliwala by name Sadikhan who took a blank paper with his signature as security for the payment of the loan. He stated that the dues of Sadikhan were paid by him, but the plaintiff having procured the blank paper from the said Sadikhan with his signature has brought this false suit.

4. The learned Small Cause Court Judge came to the conclusion that the promissory note Ext. 1 was executed fay the defendant and that it did not show that it was given in favour of any man known as Sadikhan. Ext. 1 bears the name of Sabedin Khan. The defendant admitted his signature in Ext. 1 in the written statement, but curiously denied the same at the time when he was giving evidence. The learned Judge therefore came to the conclusion that Ex. 1 was a valid document.

5. Mr. Asok Das for the petitioner contends before me that the plaintiff-opposite party admitted that he never maintained any accounts; that he did not produce the account books into Courts; and that he did not file an extract of the suit transaction as required by the rules under the Money Lender's Act and as such the plaintiff's suit should be dismissed. Section 7 of the Money Lenders Act says,

'Every registered money-lender shall in respect of every loan advanced by him after the commencement of this Act and every transaction made by him after the commencement of this Act relating to any loan advanced by him before the commencement of this Act-

(a) regularly record and maintain, or cause to be recorded and maintained, an account showing for each debtor

(i) the date of the loan, the amount of the principal of the loan and the rate per centum per annum of interest charged on the loan;

(ii) the amount of every payment received by the money-lender in respect of the loan, and the date of such payment; and

(iii) any other terms which may be agreed on between the money-lender and the debtor;

X X X X'

Section 19 of the Act provides for the penalty for contravention of Rule 7. Section 19 is as follows:--

'If any money-lender or his agent wilfully contravenes any of the provisions of Section 7, such money-lender or agent, as the case may be, shall be punishable with fine not exceeding five hundred rupees. Rule 11 of the Rules made under Section 26 of the Money Lenders Act, 1939 enacts,

'Every plaint in a suit by a money-lender as denned in Sub-clause (1) of Clause (j) of Section 2 shall, in addition to any other particulars that may be required by any law, contain the following particulars :--

(i) date and number of his registration certificate

(ii) maximum capital in respect of which he holds certificate, and

(iii) a copy of the account referred to in Clause (a) of Section 7 of the Act relevant to the case.' Rule 12 requires that the plaint shall contain also the maximum amount of capital of the plaintiffs money-lending business.

6. In this case, admittedly all these rules are contravened by the plaintiff except that he filed the registration certificates showing that he was a registered money-lender, after the close of the hearing. Mr. Das at one stage wanted to challenge that these certificates maynot refer to the plaintiff, but he gave up that contention. Mr. Das contends that the non-mention of these particulars in the plaint entails a dismissal of the suit or a rejection of the plaintand secondly the non-production of the account books gives rise to an adverse inference against the plaintiff.

7. Order 7, Rule 11 of the Civil Procedure Code contemplates four instances where a plaint shall be rejected. There are many provisions in Order 6 of the Civil Procedure Code which require certain things to be done by the plaintiff with regard to the plaint. Mr. Das contends that anything required to be mentioned in the plaint, if not mentioned, entails a rejection of the plaint. But the decision quoted by him of the Madras High Court in the case of Nedungadi Bank Ltd. v. Official Assignee of Madras, reported in AIR 1930 Mad 473 (A) deals with a case where the particulars were not furnished even though ordered. Mr. Das drew my attention to a particular observation in the said judgment at page 475 which is to this effect:

'That means that the written statement of the defendants was an incomplete, insufficient and ineffective defence and the result would simply be that the position of the defendants would be practically equivalent to that of a defendant who had put in no defence. But this observation must be taken in conjunction with what is stated above and below that observation by the learned Judge. This case does not support Mr. Das's contention. He next relied upon some observations of the Supreme Court in the case of Bhikaji Keshao Joshi v. Brijlal Nandlal Biyani, reported in (S) AIR 1955 SC 610 (B). In that case it was observed.

'There can be no reasonable doubt that the requirement of full particulars regarding corrupt practices, enjoined by Section 83(2) is one that has got to be complied with, with sufficient fulness and clarification so as to enable the opposite party fairly to meet them and that they must be such as not to turn the enquiry before the Tribunal into a rambling and roving inquisition. The primary responsibility for furnishmg full particulars of the alleged corrupt practices and to file a petition in full compliance with Section 83(2) of the Act is on the petitioner. Where undoubtedly the Tribunal has taken all too narrow a view of their function in dealing with the various alleged defects in the petition and in treating them as sufficient for dismissal, the petitioner is not absolved from his duty to comply, of his own accord, with the requirements of Section 83(2) of the Act and to remove the defects when opportunity is available. He cannot take shelter behind the fact that neither the Tribunal nor the respondent has, in terms, called upon him to furnish better particulars. While the tribunal has undoubtedly the power to permit amendment of the schedule of corrupt practices by permitting the furnishing of better particulars as regards the items therein specified, there is no duty cast upon the Tribunal to direct suo motu the furnishing of better particulars.' On the strength of these observations, Mr. Das contends that it was obligatory on the part of the plaintiff to furnish the particulars and in the absence of those particulars in the plaint, the Court was entitled to dismiss the suit or to reject the plaint. This observation no doubt supports Mr. Das's contention to some extent, but it is not an authority for the position that in all cases where the applicant does not furnish the particulars required by him to be furnished under any statute, the application should be dismissed. In the said decision of the Supreme Court there were also observations which go to show that an application should not be dismissed on the ground that it did not fulfil the requirement. It was observed in the judgment:

'In the case of a petition under Section 80, where the enumeration of corrupt practices committed by the respondent is vague, except for one item, the tribunal when dealing with the matter in the early stages should not dismiss the application. It should exercise its powers and call for better particulars. On non-compliance therewith, it should order a striking out of such ol the charges which remained vague and call upon the petitioners to substantiate the allegations in respect of those which were reasonably specific. The order of the Tribunal in dismissing the petition outright would be clearly erroneous.' As pointed out by Mr. Sinha, the learned counsel for the opposite party, there are many provisions in the Civil Procedure Code, the non-compliance of which does not always entail a dismissal of the suit. That power should only be exercised after giving an opportunity to the plaintiff or the defendant to rectify the omissions and if, after opportunity was given, the omissions are not rectified, then the Court may reject the plaint or strike off the defence.

8. Mr. Das next contends that the non-production of the accounts by the plaintiff should be viewed with suspicion. Had the defendant contended that after the execution of the suit promissory note he paid the plaintiff some monies towards interest and that they were not given credit to, then Mr. Das could argue with some force that an adverse inference should be drawn against the plaintiff for non-production of the account books. But when his contention in the written statement was that the plaintiff was not his creditor and that some other man was his creditor, I do not find how the account books would help him. The plaintiff has stated in his evidence that he never maintained any accounts. He clearly made a categorical admission that he violated the statutory provisions of the Orissa Money Lenders Act and that he had committed an offence punishable under Section 19 of the said Act.

9. The plaintiff claimed interest at the rate of 12 per cent and the suit was accordingly decreed. Mr. Sinha frankly concedes that his client is not entitled to interest.

10. The question whether the non-compliance of Rules 11 and 12 of the Money Lenders Act entails the dismissal of the suit requires a full consideration. In my opinion, if the non-compliance of the rules docs not entail a rejection of the plaint, the rules practically become a mockery and the purpose of the Money Lenders Act would be nullified. When plaints are filed by money-lenders it is advisable that the Court should call for the particulars necessary to be given according to law. Otherwise the plaintiff would take up the plea, if the matter comes up in revision or appeal to the High Court, that he was not given an opportunity to supply the defects or rectify the omissions and therefore that matter cannot be taken up in revision or appeal under Section 99 of the Civil Procedure Code. To remedy these things and to see that the provisions of the Money Lenders Act. are followed, the Court should call for these particulars made obligatory on the money-lenders in filing plaints. These particulars should be called for if not given in the plaint and then only other proceedings should be taken in the suit.

11. For the reasons stated above, there is no sufficient material before me to hold that the judgment of the learned Small Cause Court Judge is contrary to law except that he ought not to have granted interest. The decree, in so far as it decrees the amount covered by the promissory note, that is, Rs. 340/-, is confirmed. That portion of the decree awarding interest is set aside. The application in revision is dismissed with modification. There will be no order as to costs.


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