1. Mr. Amar Singh, retired Deputy Superintendent of Police, brought a suit against his cousin Kuldip Singh for the recovery of Rs. 1,48,1257-, made up of Rs. 1,20,000/- as principal and Rs. 28,123/- as interest by sale of mortgage properly which was described in the plaint. This suit was brought on the 17th of August 1948 and was decided in favour of the plaintiff by the trial Court on the 15th of March 1950. On that date the trial Judge grunted the plaintiff a preliminary decree for Rs. 1,-48,125/- with costs. The plain-tiff had joined three other persons as defendants with Kuldip Singh, defendants Nos. 2 and 3 being subsequent mortgagees and defendant No. 4 being the transferee from defendant No. 1 of his rights and interests in the property. The trial Judge passed the decree against all the defendants. The Judge also allowed the plaintiff future interest till realization at the rate of 6 per cent, per annum, payment to be made within three months from the 15th March 1950, failing which the plaintiff would be at liberty to get the mortgaged property sold on obtaining a final decree. There were directions regarding the other three defendants which it is not necessary to mention. This decree was made final on the 15th of July, 1950, on an application made by the plaintiff on the 16th of June, 1950, there having been no payment made. From the preliminary and the final decrees five matters are pending in this Court. There is Regular First Appeal No. 129 of 1950 by the defendant Kuldip Singh in which he wanted the preliminary decree to be set aside. There is Regular First Appeal No. 103 of 1950 put in by the plaintiff in which he wanted the date from which future interest was to run to be amended in the decree. The plaintiff had put in an application before the trial Judge for the amendment. The Judge refused the amendment. From the order refusing the amendment a revision was taken to this Court which is Civil Revision No. 279 of 1950. After the final decree was drawn up the defendant appealed from the final decree and this is Regular First Appeal No. 248 of 1950. The defendant also put in Execution First Appeal No. 251 of 1950. This is an execution appeal, the ground of appeal being that the Judge had ordered that on proper interpretation of his decree the date of running of the future interest was the date of the suit. This judgment will dispose of all these five matters.
2. Kuldip Singh mortgaged on the 3rd of July, 1945, the factory known as Kuldip Chemical and Oil Mills situated on the Grand Trunk Road, Am-bala Cantonment, together with all the lands buildings, machines, tools and stores etc., to Mr. Amar Singh for a sum of Rs. 1,20,000/- by a registered mortgage deed. That deed stated that the mortgagee Amar Singh had already advanced a sum of Rs. 92,661/13/- to the borrower Kuldip Singh. The details of this sum were mentioned in the deed, It was mentioned that the borrower acknowledged to have received these sums and a further sum of Rs. 27,333/3/- was being paid to Kuldip Singh by Amar Singh before the Sub Registrar. The rate of interest for the payment of the money was 7 1/2 per cent. This suit, as already stated, was brought on the 17th of August, 1948.
3. On the 8th of January 1949, Amar Singh and Kuldip Singh were examined by the trial Judge. Kuldip Singh stated that the mortgage deed had been executed by him, that he had received Rs. 27,000/- odd towards its consideration and the rest of the money was spent by the plaintiff in partnership in the Industrial Syndicate and the Kuldip Singh Chemical Oil Mills. The accounts of the partnership wore never gone through. He further stated that he had paid the plaintiff a sum of Rs. 35,000/-, but the receipt of this sum was sent to his lawyer whom he called Mr. Inderjit of Lahore.
He said he did nob know the whereabouts of Mr. Inderjtt. He pleaded that the plaintiff was a money-lender. The payment of Rs. 35,000/- was made at the end of 1946 or the beginning of 1947.
4. Amar Singh stated that the mortgage was with consideration and that no payment had been made towards principal or interest. Amar Singh stated that he never realized Rs. 35,000/- nor gave any receipt. He also said that he was not a part-ner in the Industrial Syndicate or in the Kuidip Oil Mills. He denied that he was a money-lender.
5. On these pleadings the trial Judge struck the following issues:
'1. Is the mortgage deed dated 3rd July, 1945, without consideration as claimed?
2. Is ihe plaintiff a money-lender?
3. Whether the defendant has made a payment of Rs. 35,000/- as alleged?' (The question of partnership payment alleged by the defendant was deemed by the trial judge to be considered in issue No. 1. No separate issue was struck regarding this matter.'
On these issues the parties led evidence. After evidence had been recorded and discussed the learned Judge gave his findings, on the first issue the learned Judge held that he had no hesitation in holding that the mortgage was with full consideration. His finding regarding partnership appears to be that Mr. Amar Singh was not a partner. On the second issue the learned Judge discussed the evidence of the witnesses who had been produced and took into consideration the statements of Kuldip Singh and Amar Singh and came to the con- clusion that the plaintiff had been advancing money to Kuldip Singh for business purposes from time to time, but that he was not doing a regular money-lending business and, therefore, he held that the plaintiff was not a money-lender. Regarding the third issue the learned Judge came to the conclusion that the payment of Rs. 35,000/- had not been proved and that the receipt Ex. D. 1 which had been produced to support this payment did not appear to the Judge to be a genuine document. On these findings the Judge, as already stated above, decreed the plaintiff's claim.
6. In appeal Mr. Sibhal, learned counsel for the defendant Kuldip Singh but faintly argued that the mortgage deed was without consideration. The learned counsel realized that there were admissions of his client, the defendant, made before the execution of the mortgage deed and after the mortgage deed in documents which clearly showed the deed being for consideration and finding his inability to get over these admissions he finally did not press the issue... It is, therefore, not necessary to say anything further on this point. In my opinion there is plenty of evidence to show that the mortgage deed was with consideration and I agree with the finding of the learned trial Judge on this point.
7. Regarding the third issue, that is the payment of Rs. 35.000/-. I am also in agreement with the finding of the trial Judge. We have seen the receipt Ex. D. 1. It is a document written on a slip of paper typed and signed in a manner which hardly inspires confidence. The very look of the receipt is suspicious. The defendant's statement about it is curious. (After discussing the evidence and the circumstances in which the receipt was produced, the Judgment proceeds as follows:--) . I would hold, therefore, that this sum of Rs. 35,000/-has not been proved to have been paid by Kuldip Singh to Amar Singh and I agree with the finding of the trial Judge on this point.
8. The only point seriously argued by Mr. Sibbal was the point that the plaintiff was a money-lender. Mr. Sibbal argued that it had been proved by evidence on the record that the plaintiff did money-lending systematically and continuously and it was the system and the continuity in his transactions which showed that he was carrying on business of advancing loans so as to come within the definition of a money-lender given in Clause (9) of Section 2 of the Punjab Registration of Money-lenders' Act III of 1938. Mr. Sibfaal quoted Halsbury's Laws of England, Vol. 23 page 181 and said it was the system and continuity in money-lending transactions Which made a person a money-lender. He cited a number of authorities which, according to him, supported him in the finding to be given in this case that the plaintiff was money-lender. One of the authorities cited by him was 'Bonnard v. Dott', (1905) 92 L T 822. In that case Kekewich J. said in one part of his judgment :
'Now, it appears from the evidence that the defendant has lent money again and again, and he writes letters in accordance with the usage of the money-lending class as though to the manner born, but that of itself, of course, is not sufficient to constitute him a money lender within the Act. To bring him within that Act he must be not merely a man who lends money, bub under Section 6 of the Act a man whose 'business is that of money-lend ing.'
In another part of his judgment he said :
'Now, I have heard the evidence of a good many gentlemen to whom the defendant has lent money from time to lime, and I take it that those cases are only samples, and that the defendant has also lent money to many other person, and I take it that all those other transactions have been of a similar character to those we have heard about.'
On the facts of that case Kekewich, J., came to the conclusion that the defendant was a money-lender.
9. Another case that was cited by Mr. Sibbal, was, 'Sano Kashinath v. Patttto Saeuto', AIR 1942 Pat 384. In that case which was before a Division Bench Harries, C. J., quoted the case of 'Lttchfield v. Dreyfus', C1905) 1 KB 584, in which Farwell, J. said. :
'But not every man who lends money at interest carries on the business of money-lending. Speaking generally, a man who carries on a money-lending business is one who is ready and willing to lend to all and sundry, provided, that they are from his point of view eligible. I do not, of course, mean that a money-lender can evade the Act by limiting his clientele to these whom he chooses to designate as 'friends' or otherwise, it is a question of fact in each case.....So far as regards the few persons whom he has assisted since 1903, either by way of discounting bills of other persons for them or by discount-Ing their own bills, it would be a straining of the language of the Act to hold that a man who so obliges friends is carrying on the business of a money-lender. The Act was intended to apply only to persons who are really carrying on the business of money-lending as a business, not to persons who lend money as an incident of another business or to a few old friends by way of friendship.'
Another judgment was also referred to in that case. That was a case of 'Edgelow v. Mac Ei-wee', (1918) 1 KB 205, McCardie, J., in that case observed :
'A man does not become a money-lender by reason of occasional loans to relations, friends or acquaintances, whether interest be charged or not. Charity and kindliness are not the basis of. usury. Nor does a man become a money-lender merely because he may upon one or several isolat-ed occasions lend money to a stranger. There must be more than occasional and disconnected loans. There must be a business of money-lending, and the 'business' imports the notion of system, repetition and continuity..... The line of demarcation cannot be defined with closeness or indicated by any specific formula. Each casp must depend on its own peculiar features. It is ever a question of degree.'
Another case that was referred to in that judgment was a Full Bench judgment of the Allahabad High Court in the matter of Bhairo Dutt', AIR 1940 All 1, in which it was held 'that an ele-ment of continuity and habit is essential to con-stitute the exercise of a profession or business. Investments of his savings by an advocate do not necessarily amount to engagement in money-lending business, the more so when such investments are few and far between and are mostly made to relations and friends. Harries, C. J., applying the principles of the rulings before him and on the facts of that case held that the person they were dealing with was not a money-lender, in that case over a period of thirty years four advances had been made and in each case there appears to nave been special circumstances which caused the advance of money. Money did not appear to have been lent regularly, but there were merely isolated transactions and made in very special circumstances.
10. There is another case on the subject 'Newton v. Pyke', (1909) 25 TLR 127, in which the plaintiff had lent 500 or 600 as a friend, though he had charged interest. Some money had been advanced by the plaintiff to others in five other transactions. It was urged in arguments that on ten occasions the plaintiff had lent money perhaps at 60 per cent., and not to friends only. It was urged on behalf of the plaintiff that there was considerable social intimacy between the parties and that the money had been lent to a friend. Walton J., quoted the case of 'itchfiled v. Dreufus', (1906-1 KB 584) already cited and said that it was a question of fact in each case. It seemed impossible, said the learned Judge, to lay down any definition or description which might be of any assistance, but the learned Judge felt that it was not enough merely to show that a man had on several occasions lent money at remunerative rates of interest; there must be a certain degree of system and continuity about the transactions. In that case the Judge felt great difficulty in coming to a decision, but, seeing that the money-lending transaction in which the plaintiff had been engaged for a long time before the date of the bill before him had been very few, and had been mostly, if not entirely with persons who could be described as friends or relations, and that the plaintiff had not advertised or announced or held himself out as a money-lender, he concluded that it would not be right to say that the plaintiff was a person whose business was that of money-lending at the time the bill was given.
11. Bearing what has been said in these authorities in mind let us see what is the evidence in the present case. It was urged by Mr. Sibbal that from September 1943, there had been more than 22 instances in which the plaintiff had lent money. We must examine these instances in order to find out whether from these instances it can be concluded that the plaintiff was a money-lender. It must be remembered what the relationship between Amar Singh and Kuldip Singh is. They are first cousins. Kuldip Singh's father died in 1912. but though he did not live with Amar Singh, Amar Singh looked alter his education and spent money on him. He continued this treatment from. 1919 till 19^6 when he got employment through Amar Singh's brother-in-law. His relations with Kuldip Singh and his family were very cordial and he had been treating Kuldip Singh as his very dear relative. (I am taking this from the evidence given by Amar Singh at page 40 line 28 onwards). There are letters by Kuldip Singh to Amar Singh showing that he wanted his heip in establishing his business. In Ex. P. 55 at page 116 of the paper book Kuldip Singh wrote to him on the 16th of July 1945 :
'It is said that 'Adversity tries the Sriends and relatives who show affection while in prosperity'. But you have acted the proverbial good Samaritan by extending your helping hand towards me at the time when I most need it. Every one is liable to err in life but you with your keen sense of duty and responsibility and forethought have tided over many difficulties and are now the only mainstay and the beacon of light for the whole family and it is my earnest prayer that God may give you a long life to shower blessings on the rest of the family.'
'Very soon permission for incorporation of the Oil Mills will be received and in this venture, I feel that your blessings and good wishes are necessary for me to be successful.'
In Ex. P. 11, a letter from Kuldip Singh to Amar Singh written on the 17th September, 1945, he wrote :
'Two days back I wrote you an urgent and important letter wherein I have requested you to please send a draft for Rs. 10,000/- by return of 'dak.' and in case it was not conveniently possible for you to arrange this amount I had asked you to please arrange to send a draft for Rs. 5,000/- only as the same was urgently needed by me. In fact I had requested you for a proportionately small amount in comparison with the amount actually needed. In fact I was to deposit Rs. 22,000/- in the bank and I have asked you for Rs. 10,000/- and am arranging for the balance of Rs. 12,000/- locally. I did not like to burden you over much knowing fully well that you have invested every penny already.'
In Ex. p. 23 on pages 125 and 129 of the paper book Kuldip Singh wrote to Amar Singh on the 19th April 1946 :
'The Oil Mills has started working but an agreement will be entered into only at the end of two months. You should be rest assured that I am always prepared to give in writing, that your interests will be safeguarded in the whatsoever form you desire. Had your dues been even ten times more you should not have feared any risk because I would have sacrified my all to look after and ensure your interests.'
'Whenever I have ventured upon any new project I have counted upon your good wishes and active support and so far the Almighty has been gracious enough to carry out your good wishes which has raised you to the position of a Guardian Angle for me in my business.'
12. Prom these letters Mr. D, K. Mahajan, who appears for Mr. Amar Singh, wanted to contend, and I believe that he is right in his contention, that Amar Singh was acting as helper to a first cousin of his in setting him up in his business and in financing a venture of his relation which was the Oil Mills. These letters show gratitude expressed by Kuldip Singh to his cousin whom he calls a good Samaritan or his Guardian Angle. These letters do not show a grabbling money-lender wanting to take advantage of a weak relation and lending money to him at usurious rate of interest.
They merely show the interest of a person having money of his own who is willing to help the venture of a relation, even though he may not be giving his money free of interest to him.
13. We must examine whah those 22 instances are which were relied upon by Mr. Sibbal to prove the system of money-lending. At page 110 of the paper book is printed the mortgage deed Ex. P. 4 on the basis of which this suit has been brought). That document mentions the various 22 transactions on which Mr. Sibbal relies, but when, analysed we find that the amount advanced in a large number of these instances is a sum of Rs. 63,961/13/-. Regarding this sum we have the document Ex. P. 21 at pages 93 and 99 of the paper book. This shows the persons to whom these advances were made. They are Messrs. K. B. Chishti and Company, the United Expeller Company, Ram Lal, Attar Chand and Company, Hira Electric Stores, Bountra and the Sialkot Transport Company to whom money had been paid. These persons had been supplying machinery for the Oil Mills and it, was for the payment of the machinery or for its transport that various items of money had been paid by Amar Singh on behalf of Kuldip Singh defendant. The total of Rs. 63,961/13/- is made up of payments to the persons mentioned above and to Kuldip Singh himself and I have no doubt that Amar Singh was financing all this sum of money so that the Oil Mills may be set up. The total sum of Rs. 63,961/13/- had been advanced earlier and a pronote for that sum had been written on the 30th of December 1944. This pronote was discharged when this mortgage deed, on which the present suit was based, dated the 3rd of July 1945 was drawn up, by this sum coming into the consideration for the mortgage amount. Another pronote of the 12th of April 1945 is also mentioned in this mortgage deed and the consideration was payments having been made to Messrs. Chishti and Company and to the borrower earlier. I have no doubt that the payments to Chishti were due on account of the machinery that was supplied for the mills and the money which had been taken by Kuldip Singh, the borrower, was no doubt also for the same purpose.
14. On this analysis it will be apparent that the only person to whom Amar Singh lent his money was Kuldip Singh and no. one else. It was either Kuldip Singh personally to whom the money was given or it was expended on behalf of Kuldip Singh's venture, the Oil Mills. It does not prove any system of money-lending to all and sundry. It merely proves a well-placed relation financing a relation and setting him up in business. From this it cannot be inferred that Amar Singh was a money-lender. Mr. Bibbal then urged that there were items in September and October 1943 totalling Rs. 19,000/- which had been lent, by Amar Singh, but, here again there were five transactions during these two months and each time the borrower was Kuldip Singh. This sum of money, it was urged by Mr. Sibbal, was returned in November 1944. This, however, would not prove Amar Singh to be money-lender. It was again Kuldip Singh to whom this money was lent and it is quite possible that he may have been wanting money either for this very Oil Mills, or for some other business purpose before he thought of the on Mills. There are other letters from Kul-dip Singh to Amar Singh which have been exhibited in this case in which he mentions Amar Singh as his helper and in which he others him to become the manager oi his Mills or to become a partner, see Exs. P. 31, P. 33 and P. 1 written in 1945 and. 1948. Indeed in his statemer in Court on page 28, Kuldip. Singh says that (sic) money had been spent by the plaintiff in the Mills. In para 3 of the additional pleas in his written statement he had said at page 8 of the paper book :
'The plaintiff and defendant No. 1 entered into partnership in the year 1943 in the firm styled Industrial Syndicate, which later on was named Kuldip Chemical Oil Mills and the plaintiff was a Managing Partner of the said firm. Certain amounts known to the plaintiff alone were advanced to the firm by the plaintiff during partnership. Eventually the plaintiff in the year 1946, fraudulently represented to the defendant, that he did not wish to continue in the firm and since there was loss in the same, therefore the same be dissolved. The plaintiff also represented that Rs. 92,661/13/- were due from the defendant No. 1 to him, therefore he should execute the mortgage deed in favour of the plaintiff. The defendant No. 1 relied upon the plaintiff whowas his first cousin and without going into accounts, executed the mortgage deed in dispute in favour of the plaintiff for Rs. 1,20,000/-after taking Rs. 27,338/3/- in cash.'
15. From the plea that had been taken and from his statement on 8th January 1949 made by him before the issues struck it is clear also that the defendant never urged anything but that the plaintiff invested his money in the plaintiff's concern.
16. From the facts of this case I do not find that it can be held that the plaintiff was a moneylender. I, therefore, agree with the finding of the trial Judge on this point.
17. The result of my conclusions is that in my opinion the learned Judge was right in his findings on the three issues. He, therefore, rightly decreed the suit. In my opinion, therefore, R. f. a. No. 129 of 1950 fails and is dismissed with costs. The result of this is that R. F. A. No. 248 of 1950 is also dismissed. There will be no order as to costs in this appeal.
18. We come to the plaintiff's appeal R. F. A. No. 103 of 1950 and to his revision 279 of 1950. The suit was decreed by the trial Judge on the 15th of March 1950. The Judge in granting him the decree used the following language :
'In view of the above findings the plaintiff is granted a preliminary decree for Rs. 1,48,125/-with costs against the defendants. The plaintiff is further entitled to future interest till realization at the rate of 6 per cent, per annum. The payment shall have to be made within three months from today, failing which the plaintiff shall be at liberty to get the mortgaged property sold on obtaining a final decree according to law.'
The decree which followed this judgment stated :
'This suit coming on this 15th day of March, 1950, it is hereby declared that the amount due to the plaintiff on the mortgage mentioned in the plaint calculated up to this 17th day of August, 1948, is the sum of Rs. 1,20,000/- for principal, the sum of Rs. 28,125/- for interest on the said principal, charges and expenses, together with interest thereon, and the sum of Rs. 6,124/- for the costs of the suit awarded to the plaintiff, making in all the sum of Rs. 1,54,249/-.
'2. And it is hereby ordered and decreed as follows : (i) that the defendant do pay into Court on or before the 15th day of June, 1950, or any later date up to which time for payment may be extended by the Court, the said sum of Rs. 1,54,2497-with future interest at 6 per cent.....'.
On the 4th of April 1950, the plaintiff put in an application before the trial Judge under Sections 151 and 152, G. P. Code in which he said :
'It was by a slip or omission, that it could not be clearly mentioned in judgment dated 15-3-1950, and the decree-sheet from what date future interest would be calculated. According to law the plaintiff is entitled to receive interest from the date of the suit. This is also clearly tho intention of the judgment of the Court. It is however proper and essential that it should be made Clear. It is prayed that it may be made clear in the judgment and the decree-sheet that the plaintiff is entitled to receive interest from the date of institution of the suit till realization. An amendment may be made in the judgment and the decree-sheet in this behalf.'
On this the learned Judge on the 26th of April 1950 said that it was correct that no date was specified but he was doubtful whether it could be done under either of the two Sections 151 or 152, Civil P. C., and he rejected the application. After the rejection of this application, the plaintiff filed C. R. No. 279 of 1950 on the 22nd May 1950 saying that the Judge should have exercised his jurisdiction and made the amendment and he also filed on the same date R. F. A. No. 103 of 1950 in which the grounds of appeal were that the learned Sub judge had not correctly appreciated the rule of law as to future interest and his decision being bad in law needed reconsideration so far as the question of future interest was concerned and prayed that this Hon'ble Court may be pl.eased to amend the decree of the learned Sub-Judge to bring it into conformity with the legal principles governing the grant of future interest particularly in view of the contumacious conduct of the defendant. The court-fee paid on this appeal was a fixed sum of Rs. 15/-. Mr. Mahajan's contention is that the trial Judge should have given his interest from the date of the suit and not merely from the date of the decree. In my opinion, when the learned trial Judge dismissed his application on the 26th of April 1905, he exercised the jurisdiction that was vested in him, though it may not have been to Mr. Mahajan's liking. The revision must, therefore, be dismissed and I dismiss it, but leave the parlies to bear their own costs. So far as the appeal is concerned, it was up to the plaintiff to have calculated the amount of interest from the date of the suit to the date of the filing of his appeal which had not been allowed by the trial Judge to him and to have specifically urged that this was the sum which had not been allowed and this was the sum which should have been allowed and paid court-fee 'ad valorem' on it. The grounds of appeal are not specific and from those grounds of appeal it is not possible to find out what exactly was the grievance of the plaintiff appellant. In my view this appeal should also be dismissed and I dismiss it leaving the parties to bear their own costs.
19. The only matter left now is E.F.A. No. 251 of 1350. This appeal is by the defendant and his grivance is that when the decree was being executed the learned Judge passed an order on the 30th of August 1950, in which he said that in the decree-sheet the words used were 'with future interest' at 6 per cent and that on a proper interpretation, the learned judge said, that they should mean that future interest shall run from the date of the suit to the date of realisation, but on the principal amount only. In my opinion this Is not the proper interpretation of the words 'future interest.' The learned Judge quite clearly in his order of the 15th of March 1950 gave the plaintiff future interest on the sum of Rs.1,54,249/-. This sum was made up of :
Rs. 1,20,000/- Principal,
Rs. 28,125/- interest, and
Rs. 6,124/- costs.
The Judge was quite clear as to what sum he wasgiving future interest on. The sums wereRs. 1,20,000/- principal ana Rs. 28,125/- interest.This sum of interest was the interest which hadbeen calculated by the plaintiff as due to him upto the date of the bringing of the suit. Thereforethere was no question of interpretation involvedso far as the order of the learned trial Judge wasconcerned, and his decree was clearly that he hadnot allowed the plaintiff interest on the periodintervening from the nth August 1948, when thesuit was instituted, to 15th March 1950, when thesuit was decided. Therefore there was no ambiguity in the decree which the learned Judge wastrying to make clear. In these circumstances thisorder of the learned Judge was wrong and it mustbe set aside: I, therefore, accept this appeal andset aside the order. There will be no order as tocosts of this appeal.
20. The result of this discussion is that R. F. As. Nos. 103, 129 and 248 of 1950 are dismissed and C R No. 279 of 1950 is also dismissed. E.P.A. No. 251 of 1950 is accepted. There will be. no order as to costs in all these appeals except in R.F.A, No. 129 of 1950 in which the defendant Kuldip Singh will pay costs to Amar Singh plaintiff.
Harnam Singh, J.
21. I agree.