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Bawa Gurdas Ram Bedi Vs. Hans Raj Ram Parshad Khatri and ors. - Court Judgment

LegalCrystal Citation
SubjectCommercial
CourtPunjab and Haryana High Court
Decided On
Case NumberFirst Appeal No. 257 of 1959
Judge
Reported inAIR1967P& H331
ActsNegotiable Instruments Act, 1881 - Sections 118; Succession Act, 1925 - Sections 317 and 319; Stamp Act, 1899 - Sections 36; Debt Law; Punjab Registration of Money Lenders Act, 1938 - Sections 2(9) and 3; Punjab Regulation of Accounts Act, 1930 - Sections 2(7) and 2(9); Punjab Debtors Protection Act, 1936 - Sections 12
AppellantBawa Gurdas Ram Bedi
RespondentHans Raj Ram Parshad Khatri and ors.
Appellant Advocate J.V. Gupta and; K.C. Nayar, Advs.
Respondent Advocate J.N. Puri,; H.R. Mahajan, Advs. (for No. 1),; H.L. Sarin
DispositionAppeal allowed
Cases ReferredNura v. Baqar Khan
Excerpt:
- - the learned senior subordinate judge directed a copy of this written statement to be given to the plaintiff so that replication might be filed on 2-6-1958. on the next date of hearing, the plaintiff's replication was duly filed, in which an objection was raised to the submission of merely preliminary objections and to the failure to file a full written statement as contemplated by the court's order dated 19-5-1958. action under order 8, rule 10 read with order 8, rule 1, civil procedure code, was prayed for. the deceased, according to the averments, used to advance money to traders and was in fact not a money-lender, though as a precautionary measure, and to avoid unnecessary legal objections, he had taken out the desired licence as well. 2. whether the consideration for the.....inder dev dua, j.1. this is a plaintiff's appeal from the judgment and decree of shri kartar singh, senior subordinate judge, jullundur, dismissing the plaintiff-appellant's suit for the recovery of rs. 7.750 on the basis of a promissory note.2. the allegation on which the suit was instituted may now briefly be stated. on 14-4-1955, hans raj, defendant no. 1, received in cash a sum of rs. 7,000 from bawa mohan lal deceased, brother of the plaintiff bawa gurdas rama bedi. the said defendant executed and completed a promissory note in favour of the deceased agreeing to pay on demand the amount so received together with interest at re. 1 per cent per month. on 18-11-1955, bawa mohan lal executed a will and appointed the plaintiff as the manager and karkun of his property and also made him.....
Judgment:

Inder Dev Dua, J.

1. This is a plaintiff's appeal from the judgment and decree of Shri Kartar Singh, Senior Subordinate Judge, Jullundur, dismissing the plaintiff-appellant's suit for the recovery of Rs. 7.750 on the basis of a promissory note.

2. The allegation on which the suit was instituted may now briefly be stated. On 14-4-1955, Hans Raj, defendant No. 1, received in cash a sum of Rs. 7,000 from Bawa Mohan Lal deceased, brother of the plaintiff Bawa Gurdas Rama Bedi. The said defendant executed and completed a promissory note in favour of the deceased agreeing to pay on demand the amount so received together with interest at Re. 1 per cent per month. On 18-11-1955, Bawa Mohan Lal executed a will and appointed the plaintiff as the manager and karkun of his property and also made him and defendants Nos. 2 to 6 his heirs and legal representatives, As Bawa Mohan Lal died sonless, the plaintiff along with defendants Nos. 2 to 6 were otherwise too his heirs under the law. Bawa Mohan Lal died on 11-2-1956. Thereafter, the plaintiff duly obtained a probate on 24-9-1956 regarding the property of the deceased, which probate was extended on 5-2-1958. On the basis of the said probate, the plaintiff claimed the right and title to recover the amount due from defendant No. 1 to the deceased Bawa Mohan Lal, and this the plaintiff claimed for the benefit of both himself and defendants Nos 2 to 6 The said defendants Nos. 2 to 8 as beneficiaries were also impleaded as parties to the suit in order to avoid any possible objection. A sum of Rs. 420 was averred to have been paid on account of interest by defendant No. 1. After giving up certain amount, the suit was instituted on 2-4-1958 for the recovery of Rs. 7,750.

3. On 12-5-1958. counsel for the plaintiff and for defendant No. 1 were present. Hari Dass, defendant No. 2, was present in person, defendants Nos. 3 to 6 being absent in spite of personal service. It appears that two applications had been filed by the defendant to which replies were filed on this date of hearing. The plaintiff was directed to file a photographic copy of the promissory note in question. The defendant filed another application of which a copy was ordered to be given, presumably to the plaintiff, for filing a reply to which the case was adjourned to 19-5-1958. On the next date of hearing presence of the parties was similar to that of the previous hearing. Photographic copy, as ordered, was produced and was directed to be placed on the record. The defendant's counsel wanted time for filing the written statement. On 26-5-1958, a written statement was filed by defendant No. 1 only raising some preliminary objections. According to these objections, the plaintiff had no locus standi to sue the defendant, to quote the exact words, 'on the basis of the alleged probate of Shri Mohan Lal's will (alleged), as an executor thereunder.' Shri Mohan Lal was pleaded to have been a money-lender and the plaintiff and his brothers, successors-in-interest of Mohan Lal were also alleged to be money-lenders.

The suit was described to be incompetent under the Registration of Money Lenders Act III of 1938. No copy of accounts having ever been furnished to the defendant under the Regulation of Accounts Act, the plaintiff was also pleaded to be disentitled to either interest or costs. The pronote was stated to be on a printed form consisting of two portions, namely, body of the pronote and the accompanying receipt. It was averred in the written statement that by an application dated 5-5-1958, the defendant had stated that the plaintiff had not produced the original promissory note and was making material alterations therein by securing the signatures of two persons purporting to be attesting witnesses in order to give to the document the appearance of genuineness and validity so as to be able to fall back upon the document as a bond etc.

Along with the plaint, only a copy of the upper portion of the printed form of the promissory note had been filed because the accompanying portion serving as a receipt did not bear the signatures of any attesting witnesses and the plaintiff was not sure if he would be able to get the signatures of some bogus witnesses. In this, the plaintiff, according to the averments, had succeeded after the institution of the suit, but getting scent of the defendant's application alleging alteration in material particulars, the plaintiff had torn off the lower portion and produced only the upper portion for inspection by the defendant. The promisory note had accordingly been rendered void because the plaintiff had made material alterations and had actually torn away half the portion. The torn portion, if produced, would have shown at a glance the material alterations made and would have also shown that the promissory note had been cancelled for lack of consideration.

The photostat copy of the upper portion of the promissory note in dispute produced by the plaintiff also showed that the place indicated for affixing stamps was left blank. The promissory note being thus unstamped, was pleaded to be inadmissible in evidence. On the left corner, four stamps were shown to have been affixed on which defendant No. 1 had acknowledged receipt of the money. This acknowledgment, according to the plea, also required a stamp of -/2/-. Both the promissory note and the acknowledgment were inadmissible in evidence not being duly stamped and, therefore, could not form the basis of the suit.

Reliance in the pleading was also placed on Section 5 of the Stamp Act which requires an instrument comprising or relating to several distinct matters to be chargeable with the aggregate amount of duty. This written statement ended with a note that the written statement on the merits would be submitted later. The learned Senior Subordinate Judge directed a copy of this written statement to be given to the plaintiff so that replication might be filed on 2-6-1958. On the next date of hearing, the plaintiff's replication was duly filed, in which an objection was raised to the submission of merely preliminary objections and to the failure to file a full written statement as contemplated by the Court's order dated 19-5-1958. Action under Order 8, Rule 10 read with Order 8, Rule 1, Civil Procedure Code, was prayed for.

In regard to the objection under the Registration of Money Lenders Act, it was averred that on a search of the papers of the deceased, a money lender's licence had since been found for the period up to 4-1-1956 and a licence by the successor-in-interest and executor had, therefore, been applied for. The suit was described to be legally entertainable. The deceased, according to the averments, used to advance money to traders and was in fact not a money-lender, though as a precautionary measure, and to avoid unnecessary legal objections, he had taken out the desired licence as well. The plaintiff as one of the successors-in-interest of the deceased and his executor was simply winding up the outstandings of the deceased in the plaintiff's own and that of his brother's interest. The successors-in-interest of the deceased who had died on 11-2-1956 had been busy in getting the probate without which no one could act on behalf of the deceased. The plaintiff, according to the replication, had been in possession of only the pronote. It was denied that the plaintiff had not produced the original promissory note, and it was averred that after compliance with the order of the Court, no material alteration could be possible. The promissory note, or whatever the writing may be described to be and held by this Court, was stated to be duly stamped and admissible in evidence. The existence of a separate acknowledgment was denied, with the result that no separate stamp for any such acknowledgment was pleaded to be necessary.

The nature of the document, on the basis of which the suit was instituted according to the plea had yet to be determined by the Court and the label fixed on it was of little legal consequence. The Court on 2-6-1958 ordered a complete written statement to be filed and observed that it would thereafter be determined whether the case be heard on preliminary objections only or that issues be trained on all the points in controversy. The hearing was adjourned to 9-6-1958. On the next date of hearing, written statement was filed in which the preliminary objections put in earlier were again repeated and the reply to the merits was also incorporated. According to the defence, Mohan Lal deceased, brother of the plaintiff, had through Basant Ram broker been negotiating for the purchase of a house situated in Bazar Bhairon, Jullundur City, belonging to defendant No. 1. The sale price was fixed at Rs. 38,000 but Basant Ram told the said defendant that as Mohan Lal wanted the sale consideration to appear as Rs. 45,000, a promissory note for Rs. 7,000 be executed by defendant No. 1 so that the said amount may also be shown as part of the sale consideration. Pursuant to this representation, Basant Ram got the promissory note in question executed by defendant No. 1, but not a single pie was paid either by Mohan Lal or by Basant Ram to the said defendant and the promissory note was accordingly without consideration altogether. It was executed, to reproduce the exact words, 'to bolster up the sale consideration and that the sale could be finalised only on that basis after the stipulated period of six months.'

The sale-deed, according to the defence, could not be executed for various reasons, including Mohan Lal's illness. Defendant No. 1 was, however, assured that the promissory note had been cancelled. It was also pleaded that the copy of the probate negatived the plaintiff's claim, and indeed, even according to the probate, the plaintiff could not sue defendant No. 1. It may be pointed out that no further details of this plea were given in the written statement. It was, however, added that in view of the will by Mohan Lal having been put forth, the plaintiff could not be permitted to plead that otherwise too, he and his brothers were the heirs of the deceased. In any case, even on that basis, the plaintiff could not sue for any amount in excess of his alleged share. The allegation of payment of interest was denied, and it was observed that the promissory note was without consideration and nothing was due from defendant No. 1. It was recited that plaintiff had admitted in his reply dated 1-5-1958 to the defendant's application dated 28-4-1958 that Mohan Lal's bams contained no entry regarding the advance of any loan to the said defendant and that the plaintiff was withholding other account-books of Mohan Lal which the deceased had been maintaining because he had a large money-lending business.

4. In his replication, the plaintiff repeated that he had in his possession only the pronote, the original of which had been shown by the Court to the defendant. In reply to the defendant's story regarding the contemplated purchase of a house, it was pleaded that the deceased had died a bachelor and had never cared for purchasing any immovable property, the only property ever purchased by him being his residential house purchased more than 50 years earlier. Prior to the institution of the suit, a notice had been served on the defendant, on the receipt of which both he and Basant Ram approached the plaintiff with a request for time for discharging the liability, and from the end of February, 1958 to 1st of April, 1958, they kept assuring the plaintiff that the entire amount or at least a major part thereof would be paid off soon. These briefly stated are the pleadings of the parties.

5. The counsel for the parties made statements before issues on 9-6-1958. The defendant's counsel denied that the writing at the back of the pronote had been made and signed by Hans Raj defendant. The entries in Urdu in the pronote, except the printed words, were admitted to be in the defendant's handwriting.

6. The plaintiff's counsel denied that the plaintiff had tried to make alterations in any alleged receipt for the payment of consideration or that he had seen any such receipt. No such receipt according to him had been found in the papers belonging to the deceased.

7. The pleadings of the parties gave rise to the following issues :--

1. Whether Shri Hans Raj defendant executed the pronote in suit without consideration and in the circumstances detailed in para 1 of the written statement? If so to what effect?

2. Whether the consideration for the execution of this pronote failed when the alleged sale was not completed and the pronote in suit stands cancelled under an agreement between the parties to the pronote?

3. Whether the plaintiff has a locus standi to sue for the recovery of the sum in suit?

4. Whether Mohan Lal (now deceased) was or the plaintiff is a creditor as defined in the R. M. Act?

5. If issue No. 4 is proved whether the advance in suit is not a loan as defined in the R. A. Act and the R. M. Act?

6. Whether the plaintiff and his predecessor-in-interest had complied with the provisions of the R. A. Act and the rules framed thereunder?

7. Whether want of registration of the plaintiff as money-lender bars this suit?

8. Whether and if so what additions or alterations were made by the plaintiff in the pronote in suit or in the receipt, if any, for payment of consideration which was written on the same paper on a part of which the pronote in suit was executed? If so what alterations or additions were so made and to what effect?

9. Whether the pronote in suit and the writing made on the stamps affixed on tht same are inadmissible in evidence for want of proper stamp?

8. I have reproduced issue Mo. 9 as amended subsequently. This amendment in issue No. 9 was made on 30-6-1958 but was unfortunately not noticed by the Court below. The trial Court, Shri Kartar Singh, Senior Subordinate Judge, held on issue No. 1 that the pronote was executed without consideration. On issue No. 2, according to the Court below, when the alleged sale was not completed, the pronote stood cancelled and the consideration for it, if any, failed. Issue No. 3 was, according to the Court below, vehemently argued by the plaintiff but the decision went against the plaintiff, who was held to have no locus standi to sue for the recovery of the amount in dispute. Decision on issue No. 4 also went in favour of the defendant and the plaintiff was held to be a creditor and a money-lender as defined in the Punjab Registration of Money Lenders Act.

The advance was held to come under the definition of loan as given both under the Punjab Regulation of Accounts Act and the Punjab Registration of Money Lenders Act. Issue No. 6 was also decided against the plaintiff because he had not shown if he and his predecessor-in-interest had complied with the provisions of the Regulation of Accounts Act. Under issue No. 7, according to the Court below, the plaintiff had placed on file Exhibit P. 12, the money-lender's licence, obtained by Bawa Mohan Lal and also his own money-lender's licence. The suit was held not to be barred for want of registration of the plaintiff as a money-lender. Issue No. 7 was thus decided in favour of the plaintiff. Issues Nos. 8 and 9 were also decided in favour of the plaintiff and against the defendant. Finally, the suit was dismissed, the parties bearing their own costs.

9. On appeal, the learned counsel for the appellant has taken us through the pleadings and the evidence led by the parties and has, to begin with, contended that the decision on issue No. 1 is wrong and the Court below has not only misappreciated the evidence but has completely ignored the presumption which attaches to a negotiable instrument like the one in question. The attending circumstances and facts have, according to the appellant's submission, also been ignored by the trial Court and the version given by Basant Ram and other witnesses of the defendant has been wrongly given credence.

After review of evidence in Para 9 their Lordships proceeded.

10. A plain reading of the testimony of Hans Raj, a contractor of opium and liquor, and of Basant Ram broker, brings out the incredible and if I may say so, ridiculous nature of flans Raj's version of the circumstances in which he executed the pronote. The entry of rate of interest in Bans Raj's handwriting in the printed pronote and his indifference in seeking return, cancellation or discharge of the pronote. renders his version singularly unconvincing. It is urged that the plaintiff has failed to produce the bahis of the deceased Mohan Lal in which an entry in regard to this loan may be found. On the strength of this omission, it is strongly argued that the pronote must be held to be without consideration. I am disinclined to attach much importance to this omission because it is not Mohan Lal who has instituted the suit but it is the executor who is fighting out this litigation on the basis of the probate obtained from the Succession Court. Mohan Lal is dead and Bawa Gurdas Bam naturally has no personal knowledge about the details of the transaction. The testimony of Hans Raj and Basant Ram is in the present circumstances a determining factor and this is clearly unimpressive and uninspiring. Another Factor which has also some relevance is that the property in question admittedly includes four shops and there cam be little doubt that sales of shops are in face of Section 5, Punjab Preemption Act, not pre-emptible. Hans Raj, of course, says that he did not know that such is the law, but considering that Hans Raj is apparently a businessman of experience, who may be assumed to possess at least average commonsense and intelligence, I am inclined to think that he would not have executed the pronote in question without receiving any consideration, in the circumstances established on this record on the mere bald assurance of Basant Ram. In the absence of some other compelling factor, Hans Raj would certainly have taken greater precaution before writing a pronote of mis type, particularly when the entire transaction of sale was based on oral understanding.

The argument urged in this Court by the respondents' counsel that Basant Ram is interested in the plaintiff would also seem to me to discount the defendant Hans Rafs story of his placing such implicit faith in Basant Ram's bare assurance and of his executing the pronote. It is worthnoting that Basant Ram who meets Hans Raj practically every day, was never approached by the latter with a complaint that a suit had since been filed on the basis of the pronote, which, according to Basant Ram, had been cancelled by Mohan Lal.

11. There is one circumstance to which I may here advert which may perhaps require some explanation, and that is the existence of an endorsement purporting to be by Hans Raj at the back of the pronote relating to the payment of interest for six months amounting to Hs. 420 on 14-4-1955, the date of the pronote. There has been considerable controversy in this Court about the handwriting of this endorsement because, according to Hans Raj, this endorsement did not exist at the time of the execution of the pronote. The Court below has not devoted much attention to this factor presumably because parties in that Court did not attach much importance to it. Hans Raj has denied this endorsement to be in his handwriting and his counsel on appeal in this Court has eloquently argued that this endorsement is a forgery, and he has in this connection drawn our attention to the fact that the original pronote was not produced in the Court at the initial stages. I am not impressed by the submission relating to non-production of the original pronote by the plaintiff in the initial stages.

Both parties, it appears to me, were proceeding somewhat cautiously and the defendant too adopted a somewhat unusual course of initially filing a restricted written statement relating only to the preliminary pleas and issues. But the pronote was actually shown to the defendant and I do not think the circumstance of the original pronote having not been produced in the very first instance casts any doubt on the genuineness of the pronote. Otherwise too, in my opinion, there is no warrant for holding the endorsement to he a forgery and looking at the evidence on the record and the admitted handwriting of Hans Raj and that of the endorsement, I have no reason to doubt this endorsement to be in the handwriting of Hans Raj.

The evidence of the handwriting expert on which the respondents have relied is unimpressive and suffers from the usual infirmity of such partisan evidence; it is hardly worth noticing. The only factor which may tend to suggest some doubt is the time of making this endorsement, i. e. 14-4-1955, the date of the pronote itself, but creditors do sometimes deduct interest from the principal amount while advancing loan, though in this case it is in the form of separate payment. This circumstance may not be conclusive. The absence of entry of this payment in the books both of Mohan Lal and of Hans Raj is, of course, suggestive of this transaction not being an ordinary loan in the normal course of business; but then this aspect is common even to the absence of the entry of loan itself in the books of the parties Apparently, therefore, as I see the situation, there is something more than what is disclosed on the record of this case by the parties. For this situation, however, the plaintiff can scarcely be blamed. Mohan Lal is dead and the plaintiff is merely an executor acting on the basis of the probate obtained from the Court. Hans Raj defendant has personal knowledge of all the facts and it is the plausibility of his version which has to be carefully scrutinised for arriving at the truth. The version put forth by him is obviously unacceptable, with the result that we are left with the unrebutted presumption permissible in the case of negotiable instruments that every negotiable instrument is to be presumed to have been made or drawn for consideration until the contrary is proved. The decision by Martineau J.. in Siraj-ud-Din v. Mst. Champo, 3 Lah LJ 439: (AIR 1921 Lab. 148), cited by Shri Puri is unavailing, as in the present case, there is no question of allegations in the plaint being inconsistent with the evidence led.

12. For the foregoing discussion, therefore, I reverse the conclusion of the learned Senior Subordinate Judge on issue No. 2 and hold that the promissory note was made with consideration. The story as put forth by the defendant having not been upheld, the decision on issue No. 2 must obviously be given in favour of the plaintiff.

13. This brings me to issue No. 3 which according to the judgment of the Court below was vehemently argued by the counsel for the plaintiff. The Court below has come to the conclusion that the plaintiff has no locus standi to institute the suit because all the assets of Mohan Lal deceased have already been distributed by the executor amongst the beneficiaries. The appellant's learned counsel has questioned the correctness of the conclusion of the Court below. Our attention has been drawn to Exhibit P. 10, the probate granted by Shri Harikishan Mehta, Subordinate Judge and District Delegate under the Indian Succession Act on 24-9-1956 in respect of the will of Bawa Mohan Lal deceased. By means of Exhibit P. 11, this probate was extended to some other debts including the debt in question which is expressly included in this order of extension dated 5-2-1958. The appellant's learned counsel has drawn our attention to Sections 317 and 319 of the Indian Succession Act.

Section 319 empowers the executor or administrator to collect with reasonable diligence the property of the deceased and the debts that were due to him at the time of his death. The Court below has taken the view that the probate initially granted could not be extended to the debts mentioned in Exhibit P. 11, because there is no specific provision in the Indian Succession Act empowering, such extension. According to that Court, Section 257 applies only when initially a grant with exception is made, which is not the position in this case; and Section 261 is only concerned with rectification of errors which again is not the case here. The order extending the probate dated 5-2-1958 is thus, according to the lower Court, without jurisdiction. I am unable to agree with the Court below that the order extending the probate to the debt in question can be considered to be without jurisdiction and, therefore, liable to be ignored, as if it is a nullity so as to render the debt in question unrealisable on behalf of the estate of the deceased.

The executor or the administrator, as observed even by the Court below, is the legal representative of the deceased for all purposes and all the property of the deceased vests in him as such. The probate too has been granted of the will in question and the plaintiff is clearly entitled to realise the debt in suit and to give a valid discharge for it. The view of the Court below is obviously unsustainable. Even the learned counsel for the respondent, who has taken every conceivable objection in this Court, has not been able to support the view of the Court below, and indeed he has not attempted to point out anything in the Indian Succession Act which would show that the extension of the probate was without jurisdiction and, therefore, ineffective in law. All that the respondents learned counsel in this Court has tried to urge is that the plaintiff alone cannot sue because on the basis of the original probate, some partition had taken place and there was some kind of a partnership. According to the learned counsel, the heirs of the deceased to whose share this pronote fell, can sue but not the plaintiff as an executor. For this submission, I find little authority either in statute or on principle with the result that the decision of the Court below on issue No. 3 must also be reversed and the plaintiff held to possess locus standi to institute the present suit.

14. In the Court below, the contention that the plaintiff as one of the beneficiaries could sue on the basis of the pronote, particularly when the other beneficiaries were parties to the suit and had no objection to the realisation of the debt, was repelled on the ground that the plaintiff had not sued as such, On the view that I have taken, it is unnecessary for me to express any opinion on this aspect, though I should not be held to uphold the view of the Court below.

15. The learned counsel for the respondent has questioned the decision of the Court below on issue No. 9 and has argued that the pronote in dispute must be treated as unstamped because the stamps are not affixed at the precise place earmarked for stamps but are affixed in one corner. It is further urged that a receipt or acknowledgment has been executed on the stamps and, therefore, the stamps should not be considered to be intended to have been affixed on the pronote. As a matter of fact, this objection was pressed before us in the very first instance on behalf of the respondent and was in the forefront of his arguments. The learned counsel has fortified his argument by submitting that one document covering more than one transactions should be stamped on the aggregate value covering all the transactions. Support has been sought for this submission from Miran Bakhsh v. Emperor, AIR 1943 Lah 69 (SB). Reference has also been made to Board of Revenue, Madras v. N. Narasimhan, AIR 1961 Mad 504 (FB).

16. The short answer to the respondents' attack against the lower Court's view is found in Section 36 of the Indian Stamp Act, according to which where an instrument has been admitted in evidence, such admission oannot, except as provided in Section 61, be called in question at any stage of the same suit or proceeding on the ground that the instrument has not been duly stamped. That the expression 'any stage' covers the stage of appeal is indisputable, and indeed has the support of the Supreme Court in V. E. A. Annarnalai v. S. V. S. Veerappa Chettiar, AIR 1956 SC 12.

17. The respondents' counsel has also challenged the decision of the Court below on issue No. 7 and has argued that neither the licence under the Punjab Registration of Money Lenders Act (No. III of 1938) obtained by Mohan Lal nor the certificate obtained by the plaintiff can save the suit and the Court below is wrong in deciding the point in favour of the plaintiff. Exhibit P. 12 dated 5-1-1955 is Mohan Lal's certificate which was valid up to 4-1-1956. Mohan Lal died on 11-2-1956. The pronote is dated 14-4-55. The suit was instituted in April, 1958 and decided on 26-6-1959 Exhibit P. 13 dated 17-6-1958 is Bawa Gurdas Ram Bedi's certificate which was valid up to 17-6-1959. The respondents' argument is that neither at the date of the suit nor at the date of the decree was there in existence and operative a certificate under the Punjab Registration of Money Lenders Act. Section 3 of this Act, therefore, must entail dismissal of the suit. The plaintiff who is a legal representative or successor-in-interest of Mohan Lal is, according to the respondent, a money lender as defined in Section 2(9) of this Act. This argument, in my opinion, ignores that in Section 2(9) itself, the case of the legal representative or the successor-in-interest by inheritance of the estate of a deceased money-lender is excluded from this definition provided that he is only winding up the estate of such money-lender or is realising the outstanding loans. The present suit by the plaintiff as an executor on the basis of the pronote for realising the outstanding loans advanced by the deceased is apparently excluded from the rigour of this Act. The fact that the plaintiff by way of abundant caution took a certificate under this Act would not by itself attract Section 3. The decision of the lower Court on issue No. 4 on this view must also be reversed.

18. The next point raised before us relates to the applicability of the Punjab Regulation of Accounts Act (No. 1 of 1930). The appellant's learned counsel has drawn our attention to Section 2(7)(vii) of this Act which excludes from the definition of loan the case of a loan advanced to a trader; the word 'trader' as defined in Section 2(9) includes a contractor. Hans Raj, it may be pointed out is a contractor of opium and liquor and, therefore, this case is outside the rigour of this Act as well. This Act thus is also unavailing to the respondent. It may be observed that this enactment was brought on the statute book for the purpose of protecting illiterate or ignorant debtors from the clutches of unscrupulous money-lenders who were reputed for cheating their debtors even in the matter of calculation of interest etc. Obviously, therefore, cases relating to loans to traders were justly excluded from the purview of this enactment. The definition of the word trader' indeed supplies a key to the real object and purpose of this Act. The decision of the Court below on issues Nos. 5 and 6 is accordingly reversed.

19. The respondent's learned Counsel, Shri Puri, raised an additional argument in this Court by pressing into service the provisions of the Punjab Debtors Protection Act (No. II of 1936). Reference has been made to Section 12 pf this Act and to a decision of the Lahore High Court in Nura v. Baqar Khan, AIR 1942 Lah 16 (FB), for casting the onus of proving consideration in regard to pronotes on the creditors. This argument, even if we allow it to be raised on appeal, falls on the same ground on which the submission relating to the Punjab Regulation of Accounts Act is repelled because the definitions of 'Loan' and 'trader' in both the Acts are exactly similar. The Debtors Protection Act is basically designed for the protection of the same class of persons as the Regulation of Accounts Act does; it merely extends the protection. And then, Section 12 itself in express terms excludes cases in which consideration is acknowledged by the debtor in his own handwriting. In the case in hand, it is not contested that Hans Raj acknowledged consideration in his own handwriting, and indeed die respondents' counsel eloquently argued that Hans Raj signed the acknowledgment on the stamps affixed on the pronote. This additional submission is thus without merit.

20. I view of the foregoing discussion, this appeal succeeds and allowing the same, I reverse the 'Judgment' of the Court below and pass a decree, in favour of the plaintiff for a sum of Rs. 7,750 with interest at 6 per cent up to the date of the decree. In the peculiar circumstances of the case, the parties are directed to bear their own costs throughout.

S.B. Capoor, J.

I agree.


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