Manmath Kumar Kar vs Md. Sirat Ali

S.N. Phokan, J.—This second appeal is by the Plaintiff on 8.7.72, the Defendant borrowed a sum of Rs. 8, 100/- from the Plaintiff by executing a hand note, As the Defendant failed to repay the amount, the suit was filed. The Defendant denied tat. execution of the hand note and also stated that the Plaintiff was a money tender by profession and the suit was not maintainable as he was not a registered money tender under the provisions of the Assam Money-tenders'' Act 1934, for short the Act, the learned trial court framed as many as six issues and held that the band note was duly executed and that the Plaintiff was not a regular money tender. Accordingly, the suit was decreed, as prayed for. In appeal, the learned lower appellate court held that the Plaintiff being a regular money tender, non-registration under the provisions of the Act has disentitled him from filing the suit. In other words, the suit is hit by Section 7D of the Act. The appeal was alloyed by setting aside the judgment and decree of the learned trial court.

The only point which needs my consideration is whether the suit is bit by Section 7D of the Act. The said Section runs as follows:

7D. Suit not to proceed without registration certificate etc.-No suit for the recovery of a loan advanced by a money tender shall proceed in a Civil Court until the court is satisfied that he holds a valid registration certificate or that he is not required to have a registration certificate by reason of the fact that he does not carry on the business of money lending.

I may refer to Section 2(1) of the Act, which runs as follows:

(1) "Money tender" means a person who in the regular course of business, advances a loan as defined in this Act and shall include, subject to the provision of Section 6, the legal representatives and the successors in interest whether by inheritance, assignment or otherwise of the person who advanced the loan and money-lending shall be construed accordingly.

It may mentioned that the above definition was amended in the year 1969 with effect from 1.9.69, and prior to that amendment, the definition was as follows:

(1) ''Money tender'' means a person including any Company or Association or body of individuals whether incorporated or not, who grants a loan.

Mr. De, learned Counsel for the Appellant, has stated that the finding of the lower appellate court that the Plaintiff-Appellant was carrying on money lending on regular course of business is perverse and not based on evidence at all. On the other hand, Mr. Laskar, learned Counsel for the Respondent, has drawn my attention to the evidence of the Plaintiff (PW-1), and the writer of the hand note PW-2 and submitted that the evidence would clearly show that the Plaintiff was a regular money tender. In this connection Mr. Laskar has drawn my attention to a specific statement in cross examination of PW-2 wherein the witness stated that he knew the Plaintiff for the last 25/30 years and during that period he wrote about eight to ten hand notes. He has further stated that PW-1 used, to lend money to various persons. In cross-examination, PW-1 stated that he has a Rice Mill, but used to give money occasionally to different persons and most of them used to refund the amount and in some cases as they defaulted suits were riled. 4. The question whether the Plaintiff Appellant is a money-tender or not in terms of Section 2(1) of the Act is a question of fact, and this Court can disturb the said finding if it found to be perverse from the above evidence on which my attention was drawn by the learned Counsel for the Respondent, I cannot come to the finding that Plaintiff Appellant was doing money-lending business regularly. The learned trial court has considered the entire evidence on record and has noted that the Plaintiff has got other source of income from his own private taxi, Rice Mill and landed property. So, the finding of the learned lower appellate court that the Plaintiff was carrying on regular course of money-lending business, is not based on evidence all and as such this finding is liable to be set aside.

The language of Section 7D of the Act is clear and unambiguous. What the law emphasized is that during the course of trial, the Plaintiff should be given a chance to produce a. valid registration certificate, if the court is satisfied that he was carrying on business of money-lending in regular course. On failure to produce such certificate, the court can take action as provided in the said section. This view was also taken by a single bench of this Court in Makhan Lal Deb v. Barua Bhar (1984) 2 GLR 118. Mr. Laskar, learned Counsel for the Respondent, has drawn my attention to paragraph 11 of the said judgment in support of his submission in my opinion, this operative portion of the judgment is not relevant as this was putted keeping in view the law laid down as stated above.

Mr. De, learned Counsel for the Appellant, has also drawn my attention to a decision of this Court in Dimbeshwar Barooah v. Rashik Chandra Hazarika AIR 1974 Gau 62, wherein it was held that money leader is a person who carries on money lending as a business and that a persons who gives casual loan to a casual borrower is not a money tender within the definition. I may state here that this law was laid down prior to the amendment of Section 2(1), which I have already quoted. Comparing the provision of the said sub-section with the amended provision, I find that prior to amendment the scope of the said sub-section was much wider and by the amendment it has been narrowed down. Even under the un-amended section the law has been clearly laid down by this Court in the above decision and I do not see any reason to take any different view.

In sum, I may say that the provisions of Section 7-D of the Act shall be attracted only if it is shown that the person is carrying on regular course of money-lending business. The provision of Section 7-D, is not attracted to a person who gives money on loan from time to time to needy persons. I may further add that taking recourse to Section 7-D a suit cannot be dismissed without giving an opportunity to the Plaintiff to show that he was not carrying on a regular course of money-lending business and if the court is satisfied then the court can proceed with the trial ; otherwise the court may give time to the money tender to produce the registration certificate.

In view of what has been stated above, I hold that the finding of the lower appellate court that the Plaintiff was not a casual money lender but was a regular money lending businessman is not at tenable and this finding is not bused on the evidence on record.

In the result, the appeal is allowed by setting aside the impugned judgment and decree and judgment and decree of the learned trial court is restored.

Parties to hear their own costs.