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Lokanath Behera (Deleted) and anr. Vs. Birabara Mohanty - Court Judgment

LegalCrystal Citation
SubjectCommercial
CourtOrissa High Court
Decided On
Case NumberCivil Revn. No. 309 of 1982
Judge
Reported inAIR1986Ori208
ActsOrissa Money-Lenders Act, 1939 - Sections 18B(8)
AppellantLokanath Behera (Deleted) and anr.
RespondentBirabara Mohanty
Advocates:S.P. Misra, Adv.
DispositionRevision allowed
Excerpt:
.....is made and for this purpose the court has the discretion either to grant time to make the deposit or not. no formal order condoning the delay is necessary, an order of adjournment would suffice. the provisions of limitation embodied in the substantive provision of the sub-section (1) of section 173 of the act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the court. no specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of section..........towards interest whereby he acknowledged the loan. as no further endorsement was made and the suit loan was not discharged, plaintiff filed o. s. no. 6/77, class-iii, in the court of learned munsif, bhubaneswar for realisation of the loan against lokanath and raghunath.3. in paragraph 5 of the plaint, it was asserted that he was a registered money-lender having licence of the year 1966 from the sub-registrar, bhubaneswar, which was subsequently renewed in 1971 and 1975. in the joint written statement filed by the defendants on 20th july, 1977, the suit was alleged to be not maintainable in view of the recent amendment to the orissa moneylenders act. on account of the dispute relating to the execution of the document, it was examined by the handwriting expert and the expert has.....
Judgment:
ORDER

S.C. Mohapatra, J.

1. Defendant No. 2 is the petitioner against a reversing judgment.

2. Plaintiff admittedly a registered moneylender advanced Rs. 800/- on the basis of a hand-note (Ext. 1) on 23-3-1968 to the petitioner and his father Lokanath. In the hand-note there are two endorsements by Lokanath on 6-2-1971 and 25-1-1974, paying some money towards interest whereby he acknowledged the loan. As no further endorsement was made and the suit loan was not discharged, plaintiff filed O. S. No. 6/77, Class-III, in the Court of learned Munsif, Bhubaneswar for realisation of the loan against Lokanath and Raghunath.

3. In paragraph 5 of the plaint, it was asserted that he was a registered money-lender having licence of the year 1966 from the Sub-Registrar, Bhubaneswar, which was subsequently renewed in 1971 and 1975. In the joint written statement filed by the defendants on 20th July, 1977, the suit was alleged to be not maintainable in view of the recent amendment to the Orissa Moneylenders Act. On account of the dispute relating to the execution of the document, it was examined by the handwriting expert and the expert has adduced evidence as witness No. 1 for the Court. The plaintiff examined himself as P. W. 1. Defendants have not examined any witness in this case. The trial Court dismissed the suit on the ground that it was barred by limitation since there is no acknowledgment of the debt as required under Section 20 of the Limitation Act by defendant No. 2. The appellate Court, however, reversed the judgment on the finding that the acknowledgment by the father will also be treated as acknowledgement of the son.

4. In this Court, Mr. S. P. Misra, the learned counsel for defendant No. 2-petitioner submitted that in the absence of clear evidence that the father was acting as the agent of the son either as Karta of the joint family or specific agency, the petitioner cannot be made liable for the debt which is barred by limitation. He further submitted that in view of the provisions of Section 18-B(8) of the Orissa Money-Lenders Act the suit itself is not entertainable which fact has been specifically pleaded in the written statement and has not been considered by both the forums below.

5. Section 18-B(8) of the Orissa Money-Lenders Act reads as follows :

'(8) No Court shall entertain any claim in respect of any loan advanced prior to the date of the order referred to in Sub-section (2) unless the particulars thereof are contained in the said order and all suits in respect of such claims shall stand abated.'

Since the claim shall not be entertained by a Court without the particulars in the order, the onus lies on the plaintiff to produce the order showing that the loan amount is particularised in the order itself as required under Section 18-B. This Court had occasion to examine the requirements of Section 18-B and where the plaintiff was requiring time to get the order, liberal view had been taken to give opportunity to the plaintiff for the purpose. In this case, however, in spite of the specific plea that the claim cannot be entertained by the Court in view of the amendment to the Orissa Money-Lenders Act no prayer has been made by the plaintiff to produce the order containing the particulars of the loan. In the absence of such an order containing the proof of the loan, therefore, the suit is not entertainable by the Court. On this short ground the suit is liable to be dismissed.

6. In view of my decision that the suit is not entertainable under the provisions of Section 18-B(8) of the Orissa Money-Lenders Act, the other question relating to limitation of the suit as against defendant No. 2 need not be gone into.

7. In the result, the Civil Revision is allowed, the decision of the learned Subordinate Judge is set aside and the decision of the learned Munsif is confirmed. As the suit is dismissed on a technical ground and there is no appearance on behalf of the opposite party, I direct the parties to bear their own costs throughout.


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