Indramani Tripathy vs Pravakar Panda

S. Acharya, J.—The unsuccessful Plaintiff in both the Courts below has preferred this appeal.

The Plaintiff''s suit is for recovery of Rs. 3,397/-, as mentioned in the plaint, on the allegation that the Defendant took a loan of Rs. 2,500/- from the Plaintiff on 23-8-1965 promising to pay the same to the Plaintiff on demand with interest at the rate of 12 per cent per annum. The Defendant did not repay the same, and hence this suit.

The Defendant denied to have take any loan from the Plaintiff. According to the Defendant, he approached p. w. 2 for an accommodation loan of Rs. 21500/-, but the latter expressed his inability to advance any such amount but agreed to arrange the said loan from some other money-lender. So the Defendant handed over to p. w. 2 a duly stamped blank paper containing the Defendant''s signature thereon. P. w. 2, however, never arranged the said loan, but manufactured the handnote (Ext. 1) on the said stamped blank paper, and the Plaintiff has falsely foisted this suit against him.

The trial Court dismissed the suit.

The Plaintiff appealed against the said decision, and after a chequered career the appellate Court ultimately has arrived at the finding that the suit handnote (Ext. 1) is a genuine document and the Plaintiff had advanced a loan of Rs. 2,500/- to the Defendant on the said document. But the appellate Court holds that Ext. 3, purporting to be the account book of the Plaintiff of his money-lending business, which was produced by the Plaintiff when the case was remanded to the trial Court to give its finding on a particular issue, is a fabricated document, and it was fabricated during the pendency of the suit and was not in existence when the suit was filed. That being so, the copy of the accounts furnished by the Plaintiff along with the plaint cannot be a correct copy of the accounts of the Plaintiff''s money-lending business, and so it cannot be said that the provision of Section 7(a) of the Orissa Money-lenders Act, 1939 (hereinafter referred to as the ''Act'') and Rule 11(ii) framed thereunder (hereinafter referred to as the ''Rules'') were followed or complied with by the Plaintiff. On such finding the appellate Court dismissed the Plaintiff''s suit.

It is contended by Mr. Madan Mohan Das, the learned Counsel appearing for the Appellant, that the Plaintiff had furnished a copy of the account book maintained by him relating to his money-lending business, and so he had complied with the provision of Rule 11(iii) of the Rules. According to Mr. Das, since a copy of the accounts of the Plaintiffs money-lending business, as maintained by him, had been filed, the Court could not have dismissed the suit merely on its own finding that the said copy was not a correct copy of the accounts of the money-lending business of the Plaintiff.

As per Rule 11, the Plaintiff, apart from other things, has to file a copy of the accounts referred to in Clause (a) of Section 7 of the Orissa Money-lenders Act, 1939 relevant to the case. Section 7, so far as is relevant is as follows:

Registered money-lender to maintain accounts and give receipts:

Every registered money-lender shall in respect of every loan advanced by him after the commencement of this Act and every transaction made by him after the commencement of this Act relating to any loan advanced by him before the commencement of this Act

(a) regularly record and maintain, or cause to be recorded and maintained, an account showing for each debtor

(i) the date of the loan, the amount of the principal of the loan and the rate per centum of interest charged on the loan;

(ii) the amount of every payment received by the money-lender in respect of the loan, and the date of such payment, and

(iii) any other terms which may be agreed on between the money-lender and the debtor;

(b) xx xx

(c) xx xx

Rule 11(iii) is as follows:

Every plaint in a suit by a money-lender as defined in Sub-clause (1) of Clause (j) of Section 2 shall, in addition to any other, particulars that may be required by any law

contain the following particulars:

(i) xx xx xx xx

(ii) xx xx xx xx

(iii) a copy of the account referred to in Clause (a) of Section 7 of the Act relevant to the case.

From the above provisions of the Act and the Rules, it is evident that the Plaintiff has to maintain correct accounts and particulars of his money-lending business, and in a suit of this nature he has to submit a copy therefrom of the genuine accounts relating to the suit transaction. The formality of the above provisions of law is not complied with on merely furnishing false or incorrect accounts and particulars of the money-lending business. True it is that in maintaining accounts of one''s money-lending business, one may commit genuine mistakes here and there in the account books, for one may not be very proficient in keeping accounts of such business in a very meticulous manner. Even Accountants with training in that job also commit errors in keeping accounts of work entrusted to them. Therefore, barring such genuine errors and-or inadvertent mistakes in the account books, if it is found that the accounts maintained are absolutely incorrect and/or are fabricated, then the requirements of the above-mentioned provisions are not satisfied by filing a copy of such false, incorrect or fabricated accounts.

The Defendant in his written statement, at the outset, asserted that the copy of the accounts furnished by the Plaintiff was false and fabricated. An issue to that effect was framed. The Plaintiff did not produce proper evidence to prove that the copy of the accounts of his money-lending business submitted by him along with the plaint was correct and genuine. Accordingly, the case was remanded to the trial Court to ascertain if really the Plaintiff had complied with the provision of Rule 11(iii). So he was required to prove that Ext. B, the copy of the accounts furnished by him in his plaint was a correct copy of the genuine accounts maintained by him relating to the transaction in question. After remand, the Plaintiff was given an opportunity to establish that fact, and there the Plaintiff filed Ext. 3, purporting to be the account book of his money-lending business. The Plaintiff asserted and the Defendant assailed that fact in their fresh evidence on this aspect. Both the trial Court and the appellate Court, on a discussion and consideration of the evidence and materials on record, have arrived at the finding that Ext. 3 was forged during the pendency of the suit and that it did not exist when the suit was filed. So Ext. 3 has been held to be a false and fabricated account book. According to the Plaintiff, Ext. 3 is the only account book which he maintained with regard to his money-lending business, and that Ext. B is a copy from the said account book. As the original account book (Ext. 3) has been found to be a false and fabricated document, Ext. B, which is said to be a copy therefrom, is certainly not a correct copy of the relevant genuine accounts which is required to be furnished under Rule 11(iii). Moreover, on the finding that Ext. 3 did not exist at the time of the filing of the suit, Ext. B has also to be held to be false and fabricated. On the above facts it is clear that the Plaintiff did not observe the requirements of Section 7 of the Act or of Rule 11(iii).

Mr. Das states that the provision of Rule 11(iii) is not mandatory. So, on the non-compliance of the same, the suit cannot be dismissed on that ground. This question has been set at rest in the Division Bench decision of this Court Dinabandhu Sahu and Others Vs. Karunakar Satapathy, After a discussion and consideration of the conflicting authorities of this Court on that point, it has been held therein as follows:

Rule 11 is not mandatory in the sense that due to its non-compliance the suit is not to be dismissed in limine. If objection is taken in the written statement as to non-compliance with the particulars under Rule 11, the Court would call upon the Plaintiff to rectify the defects and give necessary particulars. In that sense it is not mandatory. But after such opportunity is given, if the necessary particulars are not furnished, it is open to the Court to dismiss the suit for non-compliance with Rule 11. At that stage the Rule becomes mandatory. xx xx

xx xx xx

Where the objection is taken in the written statement and the defects are not removed as directed by the Court, dismissal of the suit entails and the question of prejudice does not at all arise. Question of prejudice is wholly foreign to the objections taken in the trial Court at the earliest opportunity.

This Division Bench decision has followed the earlier Division Bench decision of this Court in Anirudha Behera and Another Vs. Dhanu Behera and Another, The non-compliance with the particulars under Rule 11'' referred to in the above quoted paragraph would include non-compliance occasioned by furnishing false and fabricated materials and data as in this case.

In the present case, the Defendant in his written statement at the very outset specifically mentioned that the copy of the accounts furnished in the plaint was false and fabricated. The Plaintiff was given opportunity to prove compliance with Rule 11(iii). For reasons stated above, the copy of the accounts furnished by the Plaintiff in the plaint can on no account be treated as satisfying the requirement of Rule 11(iii). So, Rule 11(iii) has not been complied with in this case even under the aforesaid circumstances. Accordingly, the suit was liable to be and was rightly dismissed.

The single Judge decision in Harekrushna Swain and Ors. v. Bijaya Kumar Mall and Ors. 1971 (1) C.W.R. 949, cited by Mr. Das is clearly distinguishable on facts. In that case, the specific objection on the ground of non-compliance with Rule 11(iii) had not been taken and no issue was framed specifically to that effect.

On the above considerations I do not find any merit in this appeal, and it is accordingly dismissed. But in the circumstances of this case, there will be no order as to costs of this appeal.

Appeal dismissed.