Dipak Kumar Sen, J.
1. Sarda Debi, the plaintiff, instituted this suit against Pacific Garments the defendant, on or about the 29th of June, 1981, claiming, inter alia, a decree for Rs. 52,937.50 P. interest and costs.
2. The plaintiff's cause of action as appearing from the plaint is, inter alia, that the plaintiff lent and advanced to the defendants, a sum of Rs. 50,000 by a cheque dated the 8th April 1980 solely for the purpose of the business of the defendant. It was agreed that the defendant would repay the said sum with interest at the rate of 15% per annum.
3. On or about the 2nd Jan., 1981, the defendant made over to the plaintiff a cheque for Rs. 50,000 on Canara Bank towards repayment of the said loan. The said cheque was dishonoured by nonpayment.
4. The present application of the plaintiff is on a summons dt. the 24th Aug., 1981 returnable on the 1st Sept., 1981 the plaintiff prays that a final judgment be passed against the defendant for the amount claimed in the suit with interest and costs.
5. It is a matter of record that the summons was served on the Advocate on record of the defendant on the 25th Aug. 1981. On the returnable date i.e. the 1st Sept. 1981 the defendant appeared and the matter was adjourned till 15th Sept. 1981. Directions were given for filing of affidavits within the ajourned date. Thereafter the matter was adjourned from time to time. Several directions were obtained in the meantime extending the time for filing of affidavits. The matter was finally heard on the 18th Nov., 1981.
6. Madhushri Gupta, a partner of the defendant has affirmed an affidavit on the 24th Nov. 1981, which has been filed in opposition to this application. It is admitted in this affidavit that the plaintiff had lent and advanced to the defendant the said sum of Rs. 50,000. It is also admitted that the defendant issued a cheque in full and final settlement of the dues of the plaintiff, which was dishonoured. It is, however, alleged that the defendant was informed by the plaintiff of such dishonour, the defendant paid to the plaintiff Rs. 50,000 in cash without receipt. It is alleged further that the said payment was made in cash on the promise of the plaintiff to grant a proper receipt which the plaintiff failed to do.
7. In a further affidavit affirmed on the 25th Nov. 1981 Madhushri Gupta alleges that the plaintiff is a regular and professional money-lender without holding a valid licence under the Bengal Moneylenders' Act. It is contended that, as such, the transaction is illegal, null and void and not binding on the defendant. It is contended further that the application is otherwise not maintainable.
8. At the hearing, learned Advocate for the defendant reiterated the aforesaid contentions of the defendant and also submitted that this application of the plaintiff was not maintainable inasmuch as the plaintiff's summons was not made returnable after giving seven clear days after service of the said summons as required under Rule 4 of Chap. XIIIA of the Rules of the Original Side of this Court. Learned Advocate contended further that under Rule 46 of Chap. XXXVIII of the said Rules the Court no doubt has power to enlarge or abridge the time appointed by the said Rules, but so far as the enlargement is concerned the same might be allowed after the expiration of the time. But so far as the abridgement of time was concerned, the same could only be decided initially and not after the summons had been returned.
9. In support of her contentions learned Advocate for the defendant cited Province of Bengal v. Midnapore Zamindari Co. Ltd., reported in AIR 1945 Cal 341 where a Division Bench of this Court held that the terms of Section 80 of the Code of Civil Procedure were imperative and admitted of no exception or implication and non-compliance of the provisions of the said section would be fatal to the suit and that a suit filed before the expiry of the period of notice must be held to be premature.
10. Learned Advocate for the plaintiff has contended to the contrary. He submitted that in the instant case there was no question of the plaintiff holding a licence at the time when the loan was advanced inasmuch as the said loan was a commercial loan and at the material time the Bengal Moneylenders' Act had not been extended to cover commercial loans. The Bengal Moneylenders' Act was amended sometime in Feb. 1981 after which, commercial loans were brought within the purview of the said Act.
11. Learned Advocate also contended that the Court had sufficient power to either extend or abridge the tune fixed by the Rules for the ends of justice and in support thereof cited the case of Shri Iswar Jagannath Deb Jew v. Fatik Chandra Seal, reported in : AIR1972Cal372 . Here the learned Judge sitting singly construed Rule 46 of Chap. 38 of the High Court Rules, Original Side and observed as follows at p. 375 :--
'After all rules of procedure are intended to be a handmaid to the administration of justice. A party cannot be refused just relief merely because of some mistake, negligence or inadvertence or infraction of the rules of procedure. This is a salutary principle and this principle has been recognised by the Supreme Court in : 1SCR22 .
12. Learned Advocate for the defendant contended in reply that in Shri Iswar Jagannath Deb Jew (supra), the learned Judge found as a fact that the notice covering the period contemplated in the Rules had been given and, as such, the learned Judge was not called upon to decide whether the Court would have power to abridge the time if the period was short and the observations of the learned Judge should be treated as obiter.
13. The point to be considered first is whether this application should be dismissed in limine inasmuch as the summons was not made returnable without giving seven clear days' notice to the defendant. In the facts it appears that the defendant did appear on the returnable date and obtained directions for filing its affidavit in opposition. Time to file such affidavit was extended more than once, and the affidavit in opposition was filed ultimately more than two months after the returnable date. Therefore it appears that the defendant was not at all prejudiced by not having seven clear days' notice. It is not the case that on the returnable date before the defendant could appear, the plaintiff obtained a summary decree. If the defendant had complained on the returnable date that the notice was short, the returnable date could be formally extended covering the shortage. The defendant not having taken any objection to the shortness of the notice till the final hearing will be deemed to have waived its objection thereto. The decision in Province of Bengal (AIR 1945 Cal 341) (supra) does not appear to have any application in the facts of this case inasmuch as, under the C.P.C., the Court has no power either to abridge or enlarge the time fixed by Section 80 of the Code. Time fixed by the Rules can be enlarged or abridged under the Rules themselves.
14. For the reasons above, the contention of the defendant as to the shortness of the period of notice of the summons cannot stand. It is directed that the period of the notice should be treated as abridged.
15. On merits, the defendant, has raised an issue on the Bengal Moneylenders' Act. Whether the amendment of the Bengal Moneylenders' Act will have any effect on the transaction will have to be finally determined in the suit and cannot be decided summarily here.
16. Payment which has been alleged by the defendant and denied by the plaintiff will also have to be adjudicated on evidence at the trial though the defendant's case appears to be little weak inasmuch as the defendant is not in a position to produce any receipt or other document in support of the payment alleged by it.
17. For the reasons above, the defendant is given leave to defend the suit on furnishing security for Rs. 25,000 to the satisfaction of the Registrar, Original Side. Such security should be furnished within one week after the Court reopens after the winter vacation.
18. In the event security is not furnished by the defendant as directed there will be an order in terms of prayer (a) of the summons and costs.
19. In the event security is furnished, there will be cross order for discovery of the security. Inspection forthwith thereafter and the suit is directed to appear in the appropriate Prospective List for hearing three months hence.
20. Liberty to mention. Costs in the cause.
21. All parties and the Department to act on a signed copy of the minutes of the order on the usual undertaking.