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Chandramani Padhan and anr. Vs. Budhanath Naik and anr. - Court Judgment

LegalCrystal Citation
SubjectCommercial
CourtOrissa High Court
Decided On
Case NumberCivil Revn. No. 497 of 1981
Judge
Reported inAIR1985Ori293; 1985(II)OLR182
ActsOrissa Money Lenders Act, 1939 - Sections 18B and 18B(8)
AppellantChandramani Padhan and anr.
RespondentBudhanath Naik and anr.
Appellant AdvocateR.K. Mohapatra and ;G. Routray, Advs.
Respondent AdvocateA.K. Sahu, Adv.
DispositionPetition dismissed
Excerpt:
.....any delay for the purpose of deposit under first proviso to sub-section (1) of section 173 is necessary. [new india assurance co. ltd. v md. makubur rahman, 1993 (2) glr 430 and new india assurance co. ltd. v smt rita devi, 1997(2) glt 406, approved. new india assurance co. ltd. v birendra mohan de, 1995 (2) gau lt 218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. - since the defendants failed to repay the amount the plaintiff was compelled to file the suit for the amount advanced along with a sum of rs. the court further observed that even though ample opportunity was given to the plaintiff to get the certificate corrected by the competent authority and the certificate was returned to him lor this purpose, he failed to refile the certificate after..........the defendant took a further plea that though the plaintiff possessed a license for doing money-lending business for rs. 5000/- yet he had transacted business up to rs. 20,000/- and he had suppressed this fact. the defendants pleaded for dismissal of the suit on this ground.3. the trial court framed six issues of which issue no. 2 was, if the suit was hit by the provisions of orissa money lenders act, the court in its judgment dated 22-3-1979 decreed the suit against the defendants holding that the suh hand note (ext. 1) was genuine and for consideration and the defendants are liable to pay the amount of rs. 1500/- stated in the hand note together with interest as agreed to by them. discussing issue no. 2 referred to above, the court came to the conclusion that in the absence of.....
Judgment:
ORDER

D.P. Mohapatra, J.

1. The legal representatives of the Original plaintiff, Udhaba Pradhan, are the petitioners in this application under Section 115, C.P.C. directed gainst the Judgment dated 25th April, 1981 of the Additional Subordinate Judge, Puri in Money Appeal No. 2/9 of 1980/79 allowing the appeal.

2. Late Udhaba Pradhan, father of petitioner No. 1 and husband of petitioner No. 2 filed O. S. No. 35/77-3 in the court of the Munsif, Puri against the Opposite Parties, who are brothers, for realisation of Rs. 2000/-. The gist of the case made out in the plaint was that the plaintiff, a registered money lender, advanced a loan of Rs. 1500/- to the defendants on their request. Sarat Chandra Naik, defendant No. 2 (opposite party No. 2) executed a hand-note for the amount in favour of the plaintiff on 10-3-1974. The amount was advanced for meeting the needs of the joint family for the two defendants and the amount was spent for the said purpose. Since the defendants failed to repay the amount the plaintiff was compelled to file the suit for the amount advanced along with a sum of Rs. 500/-towards interest from 10-3-1974 to 10-3-1977.

The defendant 2 in his written statement admitted the execution of the hand-note but denied having taken the loan of Rs. 1500/-. He asserted that he had incurred a loan ofRs. 500/- only from the plaintiff and had repaid the same along with Rs. 20/- towards interest. According to the defendants it was a practice with the plaintiff to insist on hand notes for three times the amount actually advanced and the defendants being in urgent necessity for the money had no other alternative but to agree to execute the document. The defendant took a further plea that though the plaintiff possessed a license for doing money-lending business for Rs. 5000/- yet he had transacted business up to Rs. 20,000/- and he had suppressed this fact. The defendants pleaded for dismissal of the suit on this ground.

3. The trial Court framed six issues of which issue No. 2 was, if the suit was hit by the provisions of Orissa Money Lenders Act, The court in its judgment dated 22-3-1979 decreed the suit against the defendants holding that the suh hand note (Ext. 1) was genuine and for consideration and the defendants are liable to pay the amount of Rs. 1500/- stated in the hand note together with interest as agreed to by them. Discussing issue No. 2 referred to above, the court came to the conclusion that in the absence of any specific evidence that the plaintiff has violated the conditions of the licence it cannot be held that the suit is hit by the provisions of Orissa Money Lenders Act.

4. Sarat Chandra Naik, defendant No. 2 (opposite party No. 2), carried an appeal, Money Appeal No. 2/9 of 1980/79 against the aforesaid decision of the trial court. During pendency of the appeal Udhaba Pradhan died and the present petitioners were substituted as his legal representatives. The lower appellate Court on assessment of the evidence on record, confirmed the finding of the trial Court accepting the plaintiffs case regarding the transaction. The court held that the defendants are liable for the sum of Rs. 1500/- stated in the hand-note to have been advanced to them and interest at the stipulated rate.

Before the appellate court it was contended that the suit was hit under provision of the Orissa Money Lenders Act on two grounds, firstly, though the money lending certificate held by the plaintiff at the relevant time was for Rs. 5000/- he had money-lending business up to Rs. 20,000/- and secondly, Ext. 2, the certificate under Section 18B of the Act obtained from the S. D. O., did not contain the particulars of the suit loan. On considerationof the materials on record, the first appellate court came to hold :

'These facts definitely establish that his pending loans exceed for more than Rs. 3000/-Had he produced the money-lending register, correct picture could have been known. On the face of these admissions and in view of his non-production of the money-lending register conclusion is irresistible that the money-lending register is produced would have shown that his pending loans would be more than Rs. 5000/- by the time he advanced the suit amount. Thus, he had violated the terms of the money-lending licence and as such he is to be non-suited.'

Regarding the Money Lending Certificate obtained from the S. D. O. under Section 18B(8) of the Orissa Money Lenders Act (3 of 1939) the court held that admittedly the said certificate did not contain particulars of the suit loan. The court further observed that even though ample opportunity was given to the plaintiff to get the certificate corrected by the competent authority and the certificate was returned to him lor this purpose, he failed to refile the certificate after corrections. In such circumstances, the court relying on the provisions of Section 18B of the Act, held that the suit is not maintainable.

5. From the aforesaid discussions the main question that arises for consideration is, what is the effect of non-production of the certificate mentioned in Section 18B of the Orissa Money Lenders Act. The answer to this question depends on the interpretation of Section 18B(8) of the said Act. At this stage it will be helpful to quote Section 18B of the Orissa Money Lenders Act, 1939.

'18-B. Power of the Government to require money-lenders to produce records : -- (1) The State Government may, from time to time, by notification, require the money-lenders or money-lenders belonging to any class or carrying on business in any local area, to produce before such authority and by such date as may be specified in the said notification all records relating to their business including documents evidencing advance of loans.

(2) The authority specified in the notification referred to in Sub-section (1) shall scrutinise the documents with a view to determining if the transactions exceed the amount for which themoney-lender has obtained the registration certificate and shall, after giving the moneylender a reasonable opportunity of being heard, pass an order declaring the particulars of transactions that are within the amount specified in the said certificate.

(3) The order referred to in Sub-section (2) shall be published by affixture in the notice-board of the authority passing the order and copies thereof shall also be sent to the Block Development Officer and the Tahasildar within whose local limits of jurisdiction the moneylender's principal place of business is situate for publication by affixture in the notice-boards of their offices.

(4) If the authority referred to in Sub-section (2) is satisfied that a money-lender has transacted business in excess of the amount specified in his registration certificate, he may issue an order cancelling the said certificate and may also disqualify him from being registered as a money-lender for such period not exceeding three years as may be specified in the order.

(5) An order made under Sub-section (2) or Sub-section (4) shall forthwith be communicated to the concerned money-lender by the authority who has made the order.

(6) Any person aggrieved by an order passed under Sub-section (2) or Sub-section (4) may within one month from the date of communication of the said order, prefer an appeal before such authority as may be specified in the notification referred to in Sub-section (1).

(7) An order passed under Sub-section (2) or Sub-section (4) shall, subject to the order passed in an appeal, if any, be final and shall not be called in question in any Court.

(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.

(9) An order passed under Sub-section (4) shall, if it is not set aside in appeal, if any, be communicated by the authority passing the order to the concerned Sub-Registrar who shall thereupon make necessary corrections in the register of money-lenders maintained by him.

(10) Subject to the provisions of sub-section (B)(?) the cancellation of the certificate ofregistration of a money lender shall not affect his right to realise the loans advanced by him in accordance with the provisions of this Act prior to such cancellations, but he shall not be entitled to the refund of any fee paid in respect of such certificate.'

On a bare reading of the provisions of Section 18B(8) it is clear that it prohibits the Court to 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. The consequence of non-compliance with this part of the provision is provided in the section itself as it provides that all suits in respect of such claims shall stand abated. Abatement of the suit does not depend on an order being passed by the court to that effect. The words 'shall stand abated' connote that the consequence entails automatically. There is no controversy that the transaction in question in the present suit comes within the purview of Section 18B and further that at the time of filing of the suit provisions of Section 18B had not been complied with by the plaintiff-petitioner. Hence, there could be no escape from abatement of the suit as provided under Section 18B(8) of the Act.

In view of the aforesaid analysis the court below rightly dismissed the suit for non-compliance with the provisions of Section 18(B) of Orissa Money Lenders Act. Accordingly, the revision petition is dismissed as devoid of merit, but in the circumstances of the case without any order for costs.


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