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Hadibandhu Mohapatra Vs. Kuntala Barik @ Kuntala Dei and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtOrissa High Court
Decided On
Case NumberCivil Revision No. 91 of 1982
Judge
Reported in60(1985)CLT396; 1985(II)OLR293
ActsOrissa Money-Lenders Act, 1939 - Sections 18B and 18B(2); Orissa Money-Lenders (Amendment) Act, 1975; Code of Civil Procedure (CPC) , 1908 - Order 41
AppellantHadibandhu Mohapatra
RespondentKuntala Barik @ Kuntala Dei and ors.
Appellant AdvocateS. Rath, S. Padhi and S.S. Das
Respondent AdvocateR.K. Mohapatra and A.N. Mishra
DispositionPetition allowed
Cases ReferredChitaranjan Mishra and Ors. v. Banamali Mishra and Ors.
Excerpt:
.....earlier circular dated 18.6.1982 resulting in reduction of pay of employee on promotion held, it is not legal. statutory rules cannot be altered or amended by such executive orders or circulars or instructions nor can they replace statutory rules. - having failed to receive the amount from the loanee, the plaintiff was compelled to file the suit for realisation of the amount. 1, as well as the endorsement on the document. the order of the dismissal of the suit was based on two grounds :(i) the plaintiff had failed to comply with the requirements of the provisions of section 18-b (2) read with sub-section (8) of the orissa money-lenders act having not obtained certificate from the competent authority containing the particulars of the suit loan ;and (ii) ext. this having not been..........of the trial court was passed on 12. 5. 1976.against the aforesaid judgment the opposite parties filed money appeal no. 2/11 of 1977/76 on 30th july, 1976. the lower appellate court disposed of the appeal by his judgment dated 15. 9. 1977, wherein it reversed the decision of the trial court and dismissed the plaintiff's suit. the order of the dismissal of the suit was based on two grounds :(i) the plaintiff had failed to comply with the requirements of the provisions of section 18-b (2) read with sub-section (8) of the orissa money-lenders act having not obtained certificate from the competent authority containing the particulars of the suit loan ; and(ii) ext. 1 cannot be accepted as receipt since it does not contain the name of the person from whom the amount is received or to whom.....
Judgment:

D.P. Mohapatra, J.

1. This petition under Section 115 read with Section 102 of the Civil Procedure Code ('Code' for short) has been filed by the plaintiff challenging the decision Of the lower appellate Court reversing the decision of the trial Court and dismissing the suit.

The petitioner filed the suit against the opposite parties for realisation of a sum of Rs. 1,668/- on the allegation that defendant No. 1 Bhagaban Barik, as Karta of the joint family of the defendants, took a loan of Rs. 1,000/- from him on 12. 6. 1968 undertaking to repay the same with interest at the rate of 12% per annum. Having failed to receive the amount from the loanee, the plaintiff was compelled to file the suit for realisation of the amount. The further case of the plaintiff was that defendant No. 1 had passed on a receipt Ext. 1 in token of receipt of the amount of Rs. 1,000/-. Subsequently he had paid a sum of Rs. 10/- towards interest on 8. 4. 1971 and endorsement to this effect was made on the reverse of the document. The suit was filed on 6. 4. 1974.

2. The opposite parties in their written statement denied the claim of the plaintiff-petitioner. They denied execution of the document Ext. 1, as well as the endorsement on the document. They denied receipt of the loan amount by defendant No. 1. It was their case that some blank papers with L. T.Is.is of defendant No. 1 had been handed over to the Bhadralogs of the village in connection with the village feud as Kaida, which have been subsequently utilised for the purpose of the suit.

3. The trial Court on consideration of the evidence placed before him decreed the suit. The Court accepted the case of the plaintiff that the document (Ext, 1) and the endorsement (Ext. 1/a) were executed by defendant No. 1 who had received the principal amount of Rs. 1,000/-from the plaintiff and accordingly the defendants were liable to pay to the plaintiff the suit amount. The judgment of the trial Court was passed on 12. 5. 1976.

Against the aforesaid judgment the opposite parties filed Money Appeal No. 2/11 of 1977/76 on 30th July, 1976. The lower appellate Court disposed of the appeal by his judgment dated 15. 9. 1977, wherein it reversed the decision of the trial Court and dismissed the plaintiff's suit. The order of the dismissal of the suit was based on two grounds :

(i) The plaintiff had failed to comply with the requirements of the provisions of Section 18-B (2) read with Sub-Section (8) of the Orissa Money-Lenders Act having not obtained certificate from the competent authority containing the particulars of the suit loan ; and

(ii) Ext. 1 cannot be accepted as receipt since it does not contain the name of the person from whom the amount is received or to whom the amount is to be repaid.

4. Sri S. S. Das, the learned counsel for the petitioner urged that the lower appellate Court erred in dismissing the plaintiff's suit on the ground of noncompliance of Section 18-B of the Orissa Money-Lenders Act ('Act' for short) without giving him a reasonable opportunity to comply with the said provisions. He placed reliance on the decisions of this Court in the case of Narayan Choudhary v. Koka Das and Anr. 49(1980) CLT 524 and in the case of Chitranjan Mishra and Ors. v. Banamali Mishra and Ors., 1984 (I) OLR 732, 58(1984) CLT 409. Regarding the other grounds stated in the impugned judgment, the learned counsel contends that the finding is vitiated since the lower appellate Court has not at all considered the evidence in the case but has proceeded merely on the document Ext.

5. Before taking up the question of non-compliance of Section 18-B(2) of the Act, for consideration, a few relevant facts may be stated. As already noticed, the suit was disposed of by the trial Court on 12th May, 1976 and the appeal was filed before the first appellate Court on 30th July, 1976. Between these two dates, had come into existence the notification issued by the State Government (S. R. O. No. 713/76) on 9th of July, 1976 and published in the extra ordinary Gazette on 14. 7. 1976, whereunder the State Government, in exercise of powers conferred by Section 18-B of the Act, directed that all registered money-lenders carrying on business in the Tahasil areas specified in Column(2)of the schedule of the notification shall produce the records relating to their business including documents evidencing advance of loans to the Subdivisional Officer specified in Column (3) of the aforesaid schedule within one month from the date of publication of this notification in the official Gazette. Puri Tahasil, wherein the transaction took place, was mentioned against item 73 of the schedule and the Subdivisional Officer, Puri was mentioned as the competent authority to verify the money-'ending account of the money-lenders. Though the notification had come into existence by the time of filing of the appeal no specific ground was taken in the memorandum of appeal to the effect that the suit or the appeal arising therefrom abates under the provisions of Section 13-B(2) read with Section 18B(8) of the Act. It appears from the records that subsequently, on 8. 8. 1977, a petition was filed on behalf of the appellant seeking to take an additional ground relating to the above mentioned point. This application for amendment was allowed by the Court on 23. 8. 1977. Shortly, thereafter, on 1. 9. 1977 the appeal was heard and disposed of by judgment dated 15. 9. 1977.

The question that arises for consideration is that, in such circumstances, was the appellate Court justified in holding that the suit stood abated in accordance with the provision of Section 18-B(8) of the Act. This question engaged the attention of the Division Bench of this Court in the case of Harihar Behera v. I. C. Patel @ Bachubhai Patel and Anr., reported in I.L.R. vol.1(1979),Cuttack 121. The Division Bench on consideration of the provision observed as follows :

'Before the said provision, Sec, 18-B, is brought into aid, it must be shown that the State Government, by notification have required money-lenders of any local areas to produce before prescribed authority by a fixed date all records relating to their business including documents evidencing advance of loans. After such production the prescribed authority has to scrutinise the documents with a view to determine if the transactions exceed the amount for which the money-lender had obtained the registration certificate and thereafter to pass an order declaring the particulars of the transactions that are within the amount specified in the certificate of registration. The said order has to be published in the manner prescribed. It is only after that a Court is debarred to entertain any claim in respect of any loan advanced prior to the date of the order unless the particulars thereof are contained in the said order and all suits in respect of such claims shall stand abated.'

In a subsequent case, Narayan Choudhury v. Koka Das and another, 49(1980) CLT 524, this Court considering the question of abatement raised at the appellate stage made the following observations :

'Enforcing the requirement in respect of pending appeal may bring in an onerous duty on the money-lender. But since the statute intended to regulate the business of money lending and the amending statute came for the purpose of imposing a grater restriction and control to exclude appeal from the operation of the amending provision may defeat the legislative intention. An opportunity, however, must be given to the moneylender to comply with the statutory requirement within a reasonable time to be fixed by the Court before an order of abatement can be passed.'

A similar view was taken in the case of Chitaranjan Mishra and Ors. v. Banamali Mishra and Ors. 1984 (I) OLR 732 : 98(1984) CLT 406

6. Examined in the light of the principles laid down in the decisions referred to above, the conclusion is unavoidable that in the present case the plaintiff-petitioner was not afforded reasonable opportunity to comply with the requirements of Section 18-B(2) of the Act after the point was permitted to be added in the memorandum of appeal by amendment on 23. 8. !977. Having permitted such as objection to be taken at the belated stage, it was the duty of the lower appellate Court to give reasonable time to the plaintiff-petitioner to obtain requisite certificate from the competent authority. This having not been done, the fin ling that the plaintiff failed to comply with the requirement of Section 18-B (2) and thereby attracted the consequence under Section 18-B(8) of the Act, is vitiated.

7. Coming to the question concerning the validity of document (Ext. 1) and the case of the plaintiff-petitioner regarding payment of Rs. 1,000/- to the defendant No. 1, a perusal of the judgment of the trial Court shows that the Court had accepted the plaintiff's case after discussing the entire evidence on record. The lower appellate Court while reversing the finding or the trial Court simply referred to the document (Ext. 1) and discussed its validity in the light of question whether it could be construed to be receipt, since the name of the person from whom the amount was received, had not been mentioned therein. The Court did not discuss the other evidence adduced in the case. As such the finding of the lower appellate Court on this aspect also is vitiated.

8. In view of the above discussions, the civil revision is allowed, the decision of the lower appellate Court allowing the appeal filed by the opposite parties and dismissing the suit is vacated and the case is remitted to the appellate Court for fresh disposal in accordance with law, after giving reasonable opportunity to the plaintiff-petitioner to comply with the requirement of Section 18-B(2) of the Act. Since the case is being remitted to the lower appellate Court for fresh disposal, it is appropriate that the petitioner files the application for accepting, documents as additional evidence before the said Court, if he is so advised. As such, no order is being passed on the said application.

Both the parties will bear their respective costs of this proceeding.


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