1. The defendant in O.S. No. 35 of 1978, Additional Sub Court, Alleppey, is the appellant. The plaintiff in the suit is the sole respondent. The suit was filed for recovery of money on a dishonoured cheque. On 18th June, 1976 the defendant requested the plaintiff to lend a sum of Rs. 15,000/-. The plaintiff paid a sum of Rs. 13,179/-, which he had with him to the defendant. For the due repayment of the amount, the defendant issued a cheque on the same day for the said amount. Later, on the same day, the defendant informed the plaintiff that he would be getting a sum of Rs. 23,000/-on 10th September, 1976 and requested the plaintiff to present the cheque thereafter. On 12th September, 1976 the plaintiff presented the cheque before the bank. It was returned, since no funds were available to the credit of the defendant. After giving oral notice of dishonour to the defendant, the plaintiff filed a complaint before the criminal court. It was dismissed, stating that the remedy of the plaintiff is to approach the Civil Court for relief. The defendant ought to have paid the amount of Rs. 13,179/- with interest at 12 per cent per annum at least from 13th September, 1976 Alternatively, the plaintiff is entitled to get interest by way of damages at 12 per cent per annum. The defendant has not paid the amount so far. Hence the suit for realisation of Rs. 15,485.32, principal and interst thereon from 13th September, 1976.
2. The defendant contested the suit. It was contended that the suit is lacking in bona fides and is not maintainable. The alleged lending of Rs. 13,179/- on 18th June, 1976 was denied The cheque was not issued for the repayment of any amount. There was no borrowing by the defendant. No oral notice of dishonour was given to the defendant. The criminal complaint filed by the plaintiff was dismissed as frivolous. The defendant is not liable to pay any amount with interest from 13th September, 1976. No demand was made to the defendant. The plaintiff was and is one who is heavily indebted. He approached the defendant in February, 1976 and obtained a post-dated cheque for Rs. 11,180/- (Ext. Bl) assuring the defendant that the cheque would not be presented. It was intended only to stall his creditors by giving them an impression that he was to get the money under the cheque. The cheque was dated 30th March, 1976, The cheque was returned later. The defendant scored the entries therein. Similarly in May, 1976 the plaintiff approached the defendant with a similar demand for the issue of a cheque. Believing the plaintiff and on his previous conduct the defendant issued the instant cheque. Ext, Al. The plaintiff cunningly presented the cheque and got it dishonoured. The suit is not maintainable. The defendant prayed for the dismissal of the suit.
3. The trial court framed seven issues. Issues Nos. 1 to 3 are the important ones. Under issue No. 1, the court below held that the suit is maintainable. Under issues 2 and 3, the court held that the defendant borrowed a sum of Rs. 13,179/- from the plaintiff and issued Ext. A1 cheque on 18th June, 1976 and that Ext. A1 was not issued under the circumstances stated in the written statement. The suit was decreed. The defendant has come up in appeal.
4. Mr. K.S. Rajamany, counsel for the appellant, argued that the suit itself is not maintainable. In that view of the matter, counsel contended that it may not be necessary to go into the merits of the case. On the merits, counsel argued that the definite plea of the defendant that Ext. A1 was issued only to oblige the plaintiff as was done on a former occasion when Ext. Bl cheque was issued, was not properly adjudicated. The court below has also failed to give due effect to Exts, B2 to B7, books of accounts regularly maintained by the defendant and proved by Dw. 1. Due to these two crucial infirmities, the decision on the merits is not in accordance with law. On the other hand, counsel for the plaintiff/respondent contended that the decision of the court below that the suit is maintainable and the discussion thereon contained in para. 13 of the judgment are justified. Counsel contended that on the merits, the court below has elaborately dealt with the evidence of the plaintiff as also of the defendant. The court believed the plaintiffs evidence. There is no error in the reasoning and conclusion of the court below regarding the merits (Issues 2 and 3) and no interference is called for.
5. We heard counsel for the appellant as also counsel for the respondent. Since the appellant raised a question of public importance, regarding the scope and applicability of Rule 16 of the Kerala Government Servants' Conduct Rules, 1960, we requested the Additional Advocate General to assist us. Accordingly, the learned Additional Advocate General argued before us regarding the scope and applicability of Rule 16 of the Kerala Government Servants' Conduct Rules, 1960.
6. The contention of the appellant's counsel regarding the non-maintainability of the suit is based on Rule 16 of the Kerala Government Servants' Conduct Rules. Appellant's counsel placed reliance on Rule 16(1)(a) and (b) of the Rules. There is no averment in the plaint that the plaintiff lent the money to the defendant for interest. So Rule 16(1)(b) may not be applicable. So, we are concerned only with Rule 16(1)(a). Rule 16(1)(a) of the Kerala Government Servants' Conduct Rules, 1960 is as follows:
16. Lending and borrowing - (1) No Government servant shall - (a) directly or indirectly engage in the business of money-lending.
Appellant defendant brought to the notice of the lower court a decision of this court reported in Vasudevan Namboothiri v. Vasudevan 1961 K.L.T. 885. But the lower court did not consider the matter on the merits. In para. 13 of the judgment the lower court has dealt with the matter to the following effect:
It is not necessary to go into the applicability of that ruling in the instant case, as there is no dear evidence to show that the plaintiff by lending money to the defendant was actually engaging himself in the business of money lending contemplated under the said Section 16. There is no averment in the plaintiff that the plaintiff lent money to the defendant for interest. It is true that the plaintiff would admit that to another businessman he was lending small amounts. It is also the plaintiff's case that under Exhibit Bl he lent money to this defendant on a former occasion. Though the conduct of the plaintiff in having lent money to the defendant under Exhibits Bl and A1 and to another businessman on a different occasion would lend, to a certain extent, support to the defendant's contention that the plaintiff is doing business in money lending, it cannot be clearly found that the plaintiff is engaged in the business of money lending and that in that business he lent the instant Rs. 13,179/-also to the defendant; Therefore it cannot be said that the plaintiff has violated the said Section 16 and consequently it is not necessary to go into the question whether the ruling cited applies to the instant case.
To say the least, the finding and conclusion are vague and unsatisfactory. We shall deal with the matter later.
7. The plaintiff in the case is the Sub-Treasury Officer. He is a government servant. As Pw. 1, he deposed as follows:
(We should state that we find it extremely difficult to decipher the handwriting of the learned Subordinate Judge, who has recorded the deposition).
8. We are unable to understand the reasoning or the finding of the learned Sub Judge contained in para. 13 of the judgment and extracted herein-above. It is clear that the plaintiff had lent money to the defendant at least on two occasions (vide Exts. Bl and Al). It is also clear that the plaintiff had lent money to one K.T. Joseph, a business-man at Shertallai. He has done so on more than one occasion. The learned Subordinate Judge has opined that these would, to a certain extent, show that the plaintiff is doing business in money lending, but it cannot be clearly found that the plaintiff is engaged in the business of money lending. We fail to understand what the Subordinate Judge meant when he said so. It is evident that the learned Subordinate Judge failed to interpret and understand the true scope and impact of Rule 16(1)(a) of the Kerala Government Servants' Conduct Rules. Rule 16 contains a mandate. It is to the effect that no Government servant shall either directly or indirectly engage in the business of money lending. The word 'business' has not been defined in the Government Servants' Conduct Rules. We have to understand the word in the general sense. For that, it is permissible to look into the dictionary meaning of the term - I.T. Commissioner v. Benoy Kumar : 32ITR466(SC) As stated in Halsbury's Laws of England, Third Edition, Vol. 38, page 10, Business is a wider term than, and not synonymous with, trade; and means practically anything which is an occupation as distinguished from a pleasure.' In Town Investments v. Department of Environment 1977(1) All. E.R. 813 at p. 819. Lord Diplock observed:
The word 'business' is an etymological chameleon; It suits its meaning to the context in which it is found. It is not a term of legal art and its dictionary meanings as Lindley L.f. pointed out in Rolls v. Miller embrace 'almost anything which is an occupation, as distinguished from a pleasure - anything which is an occupation or a duty which requires attention is a business,....
Webster's Third New International Dictionary, Volume I, page 302, contains the various shades of meaning for the word 'business'. A few of them are: -
Purposeful activity; activity directed toward some end; an activity engaged in as normal, logical, or inevitable and usually extending over a considerable period of time; a usually commercial or mercantile activity customarily engaged in as a means of livelihood and typically involving some independence of judgment and power of decision; transaction, dealings, or intercourse of any nature; serious activity that requires time and effort and usually the avoidance of distracting influences; a particular field of endeavour.
There are other shades of meanings as well. We should remember that the meaning of the word 'business' depends upon the context and the statute in which it occurs. In mercantile statutes or fiscal statutes, it may mean one thing; but in non-mercantile statutes the same meaning cannot fit in. In the instant case, the word, occurs in Kerala Government Servants' Conduct Rules. Those rules primarily govern the conduct of the government servants. It is enacted in pursuance of the powers vested in the Governor under the proviso to Article 309 of the Constitution of India. They are framed in 'public interest' and as a matter of 'public policy'. They lay down norms and standards for the conduct of the government servants in public interest. These aspects afford a key to the understanding of the word 'business' occurring in that statute. In such a statute, we are of opinion that the word 'business' can only mean 'an occupation or a duty which requires attention, as distinguished from pleasure. It may be a purposeful activity; or an activity directed towards some end. It may also be transactions or dealings of any nature. It is also important to note that the rules interdict the government servant from engaging himself even indirectly in the business of money-lending. This also deserves notice. On a reading of para. 13 of the judgment of the court below, we are satisfied that the court below totally failed to apply its mind to the words occurring in Rule 16(1)(a) of the Kerala Government Servants' Conduct Rules. The finding in this regard is totally faulty, ambiguous and vague. The finding is inconsistent. We are, therefore, constrained to reverse the said finding contained in para. 13 of the judgment.
9. Appellant's counsel contended. that the court below failed to apply the decision reported in Vasudevan Namboothiri v. Vasudevan (supra). It was also contended that the instant transaction is against the mandate contained in Rule 16(1)(a) of the Kerala Government Servants' Conduct Rules. According to counsel for the plaintiff/respondent, this plea was not pointedly or specifically raised in the written statement. So he had no opportunity to explain and prayed for a remit. A plea regarding non-maintainability of the suit, as one inhibited by Rule 16(1)(a) of the Kerala Government Servants' Conduct Rules was not taken. But the plea was argued on the basis of an issue framed, regarding the maintainability of the suit - a general issue. The decision of this court reported in Kurien v. Government of Kerala 1963 K.L.T. 183, and the decision of the Madras High Court in M.Kesava Gounderv. D.C. Rajan A.I.R. 1976, Madras 102, are to the effect that if the illegality of an agreement appears from the evidence or is otherwise duly brought to the notice of the court, the court cannot enforce it, whether the illegality is pleaded or not. It has also been laid down that such a question which has a bearing on public policy, can be raised by the court suo motu. But the court below has not entered a proper or definite finding on the basis of evidence. In the first instance it is for the trial court to advert to the relevant evidence and enter a finding. That should be done bearing in mind the true scope of Rule 16(1)(a), and applying the same to the facts of the case. This has not been done by the trial court. In the interest of justice, and for a proper and fair adjudication, we are of opinion that the judgment of the court below should be set aside and the matter should be remitted to the lower court for a fresh consideration in accordance with law and in the light of the observations contained hereinabove. We hereby do so.
10. After the remit, while considering the matter, afresh, the trial court should bear in mind the decision reported in Vasudevan Namboothiri v. Vasudevan (supra) as also the decision reported in Ratanchand Hirachand v. Askar Nawaz Jung : AIR1976AP112 , wherein the Andhra Pradesh High Court has exhaustively dealt with the law relating to doctrine of 'public policy' and its scope. The counsel appearing for the parties as also the learned Additional Advocate General cited before us an array of authorities. We refrain from citing all of them since we are ordering a remit and directing the court below to reconsider the matter in accordance with law.
11. With regard to the merits, it is true that the court below has considered in detail the evidence of the plaintiff as also that of the defence. The defendant had a positive case that Ext. Ai cheque was given only to oblige the plaintiff to stall his creditors, as was done when a similar cheque was issued, evidenced by Ext. Bl dated 30th March, 1976. This has been refered to in para. 13 of the judgment. But the court below has not expressly adjudicated or considered, in detail that aspect of the matter. So also, the court below has discarded the evidentiary value of Exts. B2 to B7 by stating that 'the mere fact that some money borrowed by Dw. 1 has not been shown by Dw. 1 in his own account books is not sufficient to show that he has not borrowed from Pw. 1.' We are of opinion that the context in which Ext. Bl was issued as also the presumption flowing from Exts. B2 to B7 should have been adverted to, in detail by the trial court. Since we are ordering a remit to the court below, with regard to Issue No. I dealing with the maintainability of the suit, we are of the view that the court below will pointedly apply its mind with regard to the plea of the defendant based on Ext. Bl as also Exts. B2 to B7 in considering the merits of the case.
12. In the result, we set aside the judgment and decree of the trial court, and allow this appeal. The matter is remitted to the court below for a de novo disposal in accordance with law and in the light of the observations contained hereinabove The case will be posted in the court below for appearance of parties on 3rd June, 1985.
13. Since the matter is one of the remit, the appellant will be entitled to the refund of the court-fees paid in the memorandum of appeal.