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Chitaranjan Misra and ors. Vs. Banamali Misra and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtOrissa High Court
Decided On
Case NumberCivil Revision No. 317 of 1981
Judge
Reported in58(1984)CLT406; 1984(II)OLR732
ActsOrissa Money-Lenders Act, 1939 - Sections 18B(2), 18B(6) and 18B(7); Orissa Money-Lenders (Amendment) Act, 1975; Code of Civil Procedure (CPC) , 1908 - Sections 115(1) and 151
AppellantChitaranjan Misra and ors.
RespondentBanamali Misra and ors.
Appellant AdvocateN.K. Misra, Adv.
Respondent AdvocateK.C. Kar, Adv.
DispositionPetition allowed
Cases Referred(Srinibas Jena and Ors. v. Janardan Jena and Ors.
Excerpt:
.....statutory rules. - (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. 16. various circumstances under which a money-lender may fail to obtain declaration under section 18-b (2) have been indicated in paragraph 7 at page 295 of the decision reported in 57 (1984) c. one of the circumstances indicated is as follows :and also cases where in spite of all his best efforts, he cannot produce the said order before filing of the suit or before the court takes up the..........are the legal representatives of the deceased registered money-lenders. after the death of the moneylender; they have filed the suit for recovery of the loan. during the pendency of the suit, the orissa act 54 of 1975 came into force. under the estate duty act, 1953 onerous burden lies on the legal representatives to get the liability under that law cleared. to avoid the rigor of the taxing statute, they left the documents at cuttack. section 18-b of the act authorises the state government to issue notifications from time to time. the petition for adjournment filed on 19.3.1977 on behalf of the plaintiffs clearly indicated that the certificate could not be obtained in time as the documents were sent to cuttack. when the documents were brought back from cuttack, the notified authority.....
Judgment:

S.C. Mohapatra, J.

1. This revision arises out of the order of Munsif, Puri, refusing to exercise the inherent power to recall the order of abatement of O. S. No. 153 of 1975-III.

2. Late Bhimasen Misra, a registered money-lender, advanced a sum of Rs. 650/- to Banamali Misra, defendant No. 1. Defendant No. 1 executed a promissory note in respect of the loan advanced to him. Bhimasen expired before realisation of the loan. Legal representatives of Bhimasen filed O. S. No. 153 of 1975-III in the Court of Munsif, Puri, for realisation of the amount.

3. During pendency of the suit, the Orissa Money-Lenders Act, 1939 (hereinafter stated as 'the Act') was amended by Orissa Act 54 of 1975. Section 18-B was added to the Statute. It reads as follows :

'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 transactions exceed the amount for which the money-lender has obtained the registration certificate and shall, after giving the money-lender a reasonable opportunity of being heard, pass an order declaring the particulars of transaction 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 money-lender'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 there upon make necessary corrections in the register of money-lenders maintained by him.

(10) Subject to the provisions of Sub-section (8), the cancellation of the certificate of registration 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 cancellation, but he shall not be entitled to the refund of any fee paid in respect of such certificate.'

4. Sub-section (1) requires a money-lender to produce all records relating to his business including documents evidencing advance of loans before the authority specified by the State Government by notification. The authority so specified is to scrutinise the documents and pass an order declaring the particulars of the transactions that are within the amount specified in the registration certificates as is provided for in Sub-section (2). Sub-section (7) provides that such order is final subject to appeal and shall not be called in question in any Court. Sub-section (8) provides that no Court shall entertain any claim unless the particulars thereof are contained in the order passed by the specified authority. In regard to pending suits it has been provided that the suit in respect of a loan would abate if the particulars of the claim are not contained in the . order. For continuance of the suit, it was obligatory for the plaintiffs to obtain the order for the specified authority.

5. On the death of a person the legal representatives are liable to pay estate duty as provided in the Estate Duty Act, 1953 (34 of 1953). For that purpose, the legal representatives, of late Bhimasen Misra had left the documents at Cuttack to be examined by the Assistant Controller of Estate Duty who had jurisdiction to assess the tax.

6. The suit: was posted to 19.3.1977. Plaintiffs could not get the order of the said authority declaring the particulars of the transaction by that date. Therefore, a petition for adjournment of the suit was filed on their behalf to the effect that the documents relating to the claim transaction had been sent to Cuttack to be scrutinised by the Assistant Controller of Estate Duty. As the documents were at Cuttack, they - were - not able to obtain declaration under Orissa Money-lenders Act from the Subdivisional Officer. When the documents were produced, authorities under the Act did not accept the documents for scrutiny to give the required declaration. The authorities were waiting for further notification to that effect. Explaining the aforesaid difficulties, defendant No. 1 also prayed for adjournment that day.

7. The learned Munsif passed an order on 19.3.1977 that on account of non-compliance of the provisions in Sec 18-B, the 'suit has abated.

8. After obtaining the declaration under the Act, plaintiffs filed a petition for recalling the order of abatement of the suit. Defendant No. 1 objected to the recalling of the order on the ground that there is no provision to recall the order of abatement.

9. On 6.12.1979, the learned Munsif allowed the petition ex parte in the absence of the defendant No. 1 and recalled the order of abatement as the declaration under the Orissa Money-lenders Act had been produced. The suit was restored to file. Defendant No. 1 filed a petition on 19.12.1979 that the Court of Munsif had no pecuniary jurisdiction on 6. 12, 1979 to entertain or deal with the application for recalling the order dated 19.3.1977. This was found favour with the learned Munsif and he recalled the order dated 6.12.1979, by his order dated 21.2.1981. As a result of the recalling of the order dated 6.12.1979, the Misc. Case No. 520 of 1978, under Section 151, Civil Procedure Code, to recall the order of abatement dated 19.3.1977 was restored and the matter was heard on 28.2.1981.

10. Learned Munsif has refused to exercise the inherent power on the ground that the plaintiffs had not applied for the required certificate within the time limit prescribed under Section 18-B of the Act which expired before the order dated 19.3.1977. In spite of the fact that the certified copy of the declaration was filed, learned Munsif held that a declaration made on the basis of an application filed beyond the time stipulated by the Statute is not valid and plaintiff should not be allowed to make any claim basing on such certificate. Accordingly, the Misc. Case has been dismissed.

11. Much stress has been put by the learned Munsif on the application by the plaintiffs before the declaring authority under Section 18-B of the Act. A reading of Section 18-B (2) makes it clear that no application is necessary to be filed before the authority. While considering the question of abatement under Section 18-B, P. C. Misra, J., has held in the decision reported in 57 (1984) C. L. T. 290 (Harihara Pati v. Daitary Khhatoi) in paragraph 9 at page 297 :

'As a matter of fact, no application was required to be filed by the Money-lender in pursuance of the amended provision of the Act and the notification. All that the Money-lenders were required to do was to produce all records relating to their business including documents evidencing advance of loans before the specified authority within stipulated period.'

This view has also been taken in an earlier Division Bench decision reported in 52 (1981) C. L. T. 249 (Vyasaraju Badrinarayan Moorty Raju v. State of Orissa and Anr..)

12. The trial Court has thus taken into consideration a circumstance which is not envisaged under law. This is an exercise of jurisdiction with material irregularity.

13. Section 18-B (7) of the Act gives finality to an order under Sub-section (2). Legislature has issued the mandate that such order shall not be called in question in any Court. A declaration given by the competent statutory authority whose certified copy was produced could not have been called in question by the trial Court.

14. Section 18-B (6) of the Act provides for an appeal by 'any person aggrieved' by an order under Sub-section (2). A debtor who challenges the advancement of a loan by the Money-lender would be a person aggrieved by an order declaring a transaction to be within the limits of registration certificate. Whether the documents required under Section 18-B (2) of the Act were produced before the authority within the stipulated period are to be investigated by the notified authority including the appellate authority. In view of ouster of jurisdiction of any Court to question the order which has became final, Civil Court cannot examine the validity of the order under Sub-section (2). Therefore, the trial Court exercised jurisdiction not vested in it in taking into consideration the validity of the declaration under Section 18-B (2).

15. In a Division Bench decision reported in 47 (1979) C. L. T. 79, the suit was dismissed on 15.7.1977 for non-production of the order under Section 18-B (2). At the time of hearing of the revision petition, it was stated that the declaration had been given. Division Bench restored the suit to file.

In 49 (1980) C. L. T. 524 (Narayan Choudhury v. Kokadas and Anr.) R. N. Misra, J., (as he then was) while accepting the contention that Section 18-B shall be applicable to pending appeals held :

'An opportunity, however, must be given to the plaintiff- respondent in the lower appellate Court to comply with the statutory requirement within a reasonable time to be fixed by the Court before an order of abatement can be passed '

It is to be noted that the Civil Revision in the reported decision was decided on 7.2.1980. The aforesaid principle was followed in 51 (1981) C. L. T. 222 (Kasi Senapati v. Raghunath Sahu).

In 51 (1981) C L. T. 219 (Batakrishna Kar v. Laxman Lenka) the Money Appeal before the first appellate Court was dismissed as having abated under Section 18-B of the Act. Order of declaration under Section 18-B (2) was passed in January, 1978 during the pendency of the Second Appeal. The same was entertained by P. K. Mohanti, J., and the plaintiff's suit was decreed in full.

16. Various circumstances under which a money-lender may fail to obtain declaration under Section 18-B (2) have been indicated in paragraph 7 at page 295 of the decision reported in 57 (1984) C. L. T. 290 (Harihar Pati v. Daitary Khhatoi. One of the circumstances indicated is as follows :

'.....and also cases where in spite of all his best efforts, he cannot produce the said order before filing of the suit or before the Court takes up the matter for consideration.'

17. While considering the question of exercise of inherent power of Court, it was held :

'there being no, other remedy available to the plaintiff, it cannot be doubted that the inherent power under Section 151, of the Code is available to be exercised to meet the ends of justice.'

It has further been held :

'there being no prohibition, express or implied, in the Statute under which the order of abatement has been passed, the Court can always pass an order which is necessary for the ends of justice or to prevent the abuse of the process of the Court by exercising its inherent power. Otherwise, there will be gross miscarriage of justice.'

Distinguishing the Full Bench case reported in 50 (1980) C. L. T. 337 (Srinibas Jena and Ors. v. Janardan Jena and Ors.) it has been held :

'......There is no dispute to the said dictum but that cannot be used as an authority for the proposition that the Court has no jurisdiction to recall or set aside an order of abatement under any circumstances.'

18. Petitioners in this Revision are the legal representatives of the deceased registered money-lenders. After the death of the moneylender; they have filed the suit for recovery of the loan. During the pendency of the suit, the Orissa Act 54 of 1975 came into force. Under the Estate Duty Act, 1953 onerous burden lies on the legal representatives to get the liability under that law cleared. To avoid the rigor of the taxing Statute, they left the documents at Cuttack. Section 18-B of the Act authorises the State Government to issue notifications from time to time. The petition for adjournment filed on 19.3.1977 on behalf of the plaintiffs clearly indicated that the certificate could not be obtained in time as the documents were sent to Cuttack. When the documents were brought back from Cuttack, the notified authority under the Act refused to scrutinise the same and was waiting for further notification. There is no admission of the plaintiffs in the petition for adjournment that they did not produce the documents for scrutiny within the specified time. When the defendant No. 1 also applied for time, trial Court ought to have given an opportunity to the plaintiffs to produce the order under Section 18-B (2) of the Act in the circumstances mentioned in the petition. Order of abatement of the suit, as such, is abuse of the process of Court and the trial Court ought to have exercised its inherent power to recall the order of abatement.

19. In view of my aforesaid findings the order of the learned Munsif refusing to recall the order of abatement is liable to be set aside.

20. I have already held that the debtor can prefer an appeal against the order under Section 18-B (2). Records do not disclose such a fact. In case the defendant No. 1 proves the appellate order setting aside the order of the notified authority, the same shall be taken into consideration at the time of hearing of the suit.

21. The Civil Revision is accordingly allowed. The suit is restored to file from the stage where it was prior to 19.3.1977. As defendant No. 1 has not appeared in the Civil Revision, there shall be no order as to costs.


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