Shantilal vs Sumankant

N.K. Mody, J.—Being aggrieved by the judgment and decree dated 15.4.2005 passed by II ADJ (Fast Track). Jhabua in civil suit No. 3-B/2003 whereby the suit filed by the appellant for realization of Rs. 80,000/- was dismissed, the present appeal has been filed.

Short facts of the case are that the appellant filed a suit for realization of a sum of Rs. 80.000/- alleging that the appellant lent a sum of Rs. 58,500/- to the respondent on 3.8.1993 on execution of promissory note. It was alleged that the amount was repayable along with interest @ 2% per month. It was further alleged that at the time of lending the money respondent gave post-dated cheque for 2.5.1994. Further case of the appellant was that upon presentation of cheque, the same was dishonoured on the ground that the account stands closed. It was alleged that thereafter appellant issued a legal notice dated 19.4.1995 but in spite of that amount was not repaid, hence the suit was filed wherein appellant claimed a sum of Rs. 58,500/- as principal along with interest and notice charges. The suit was contested by the respondent on various grounds including on the ground that the appellant is a money lender and without having a licence and without complying the provisions of Money Lenders Act, the suit itself is not maintainable. It was prayed - that the suit be dismissed.

On the basis of pleadings of the parties, learned Court below framed the issues, recorded the evidence and dismissed the suit against which the present appeal has been filed.

During pendency of the appeal an application was filed under Order 41 Rule 27 of CPC which is marked as I.A. No. 1353/2005 along with photocopy of certificate of registration from the office of the Nagar Panchayat, Petlawad, District Jhabua wherein it is mentioned that appellant is registered as money lender under the provisions of Money Lenders Act, 1934.

Learned Counsel for the appellant argues at length and submits that all the findings regarding lending money of Rs. 58,500/- and execution of promissory note by respondent has been given by the learned Court below in favour of the appellant. It is submitted that only on the ground that the appellant is money lender and appellant has not produced the certificate of money lending, the suit has been dismissed. Learned Counsel for the appellant submits that since the certificate is a public document, therefore, the same be placed on record and suit filed by the appellant be decreed. For this contention reliance is placed on a decision in the matter of Raghunath v. Gordhan 1987 MPWN SN 204, wherein this Court has held that opportunity to comply with the provisions should be given to the plaintiff and if the certificate is not produced then the same should be got produced. Further reliance is placed on a decision in the matter of Parasram Singh v. Vidhichandra 1995(2) Vibha 133, wherein it was held that appeal is continuation of suit and if the certificate of registration is filed during pendency of the appeal then it is sufficient compliance of the provision of Money Lenders Act

Mr. Yogesh Purohit, learned Counsel for the respondent submits that learned Court below has rightly dismissed the suit as in spite of objection raised by the respondent the certificate was not produced by the appellant. Learned Counsel placed reliance on a decision in the matter of Ashok Kumar Kanhiyalal v. Laxmi Kirana Stores 1996 (2) SN 169 wherein it was observed that the entries in register of Firms Court not be filed in this Court, may be filed in Appellate Court and such document should be taken on record for doing complete justice. It was further held that the respondent is also entitled for adducing the evidence on record.

In the present case learned Trial Court dismissed the suit on 15.4.2005. The certificate was issued to the appellant on 23.11.2005 which was filed by the appellant along with the application on 9.12.2005. In the facts and circumstances of the case, in the opinion of this Court the application filed under Order 41 Rule 27 of CPC deserves to be allowed and is hereby allowed. Consequently, appeal is also allowed. Findings of learned Trial Court so far as it relates to the Issue Nos. 4 and 6 are set aside and case is remanded to the learned Trial Court to decide the suit on these two issues afresh after giving an opportunity to the parties to lead evidence in that regard oral as well as documentary. Parties are directed to remain present before the learned Trial Court on 20.4.2007. Learned Trial Court shall re-decide suit within three months. No order as to costs.