Shougrakpam Purnima Singh vs Lungningam Gangmei

Kh. Nobin Singh, J

[1] Heard Shri R.K. Nokulsana, learned Senior Advocate appearing for the petitioner and none is present for the respondent.

[2] The instant revision petition has been filed against the order dated 29.05.2017 passed by the learned Civil Judge, Senior Division, Bishnupur in Judl. Misc. Case No.167 of 2017 [O(M)S. No.2 of 2014].

[3.1] Facts and circumstances which have led to the filing of the instant revision petition, are that the respondent filed a suit being O.(M).S. No.2 of 2014 against the petitioner praying for a decree for recovery of a sum of Rs.20,40,000/- (Rupees Twenty Lakh Forty Thousand) with interest at the rate of 6% per annum on the decreetal amount from the date of decree till the realization of decreetal amount. In the said plaint, it has been stated by the respondent that although he is a businessman by occupation, he was/ is not a money lender by occupation and he does not deal with the business of money lending. On 10.11.2013, the petitioner being a friend approached him for a loan of Rs.15,00,000/- (Rupees fifteen lakh) which the respondent agreed and accordingly, the respondent paid a sum of Rs. 15,00,000/- to the petitioner who, in turn, executed a money receipt in favour of the respondent in the presence of two witnesses. The petitioner also executed a demand promissory note and a loan agreement in favour of the respondent assuring to repay the amount with interest at the rate of 4% per month with effect from 01.11.2013 and in the loan agreement, the petitioner agreed that he would execute a deed in favour of the respondent for mortgaging his homestead land with delivery of possession and that the respondent was granted liberty to enter into possession of his homestead land in the event of his failure to repay the loan within the stipulated time.

[3.2] Since the petitioner having failed to repay the loan amount as agreed, the respondent filed the said suit. The petitioner filed a written statement denying the averments made in the plaint stating that he never approached the respondent for a loan of Rs.15,00,000/- and in addition thereto, it has been stated that no one without having a valid licence under Section 6 of the Bombay Money Lenders Act. 1946 can advance money to be recovered with interest. Since the respondent filed the suit for recovery of money with interest, he ought to have a valid licence, otherwise the suit could not have been proceeded under Section 10 of the said Act. The petitioner approached the respondent for giving some money for which he agreed to mortgage his homestead land and under such consideration, the petitioner asked the respondent to give a sum of Rs.15,000/- (Rupees Fifteen Thousand) only for an urgent need for which he signed some blank stamp papers. When the money receipt dated 01.11.2013 filed by the respondent along with the suit was checked and verified, it was found that the Non Judicial Stamp on which the money receipt was written, bears the date of 26.12.2013 on its overleaf, from which it is evident that the respondent had manufactured a document and the loan amount alleged to have been taken on 01.11.2013, could not be acknowledged in a later date i.e. 26.12.2013.

[3.3] An application being Judl. Misc Case No.312 of 2016 was filed by the petitioner praying for directing the respondent to produce the licence issued under the provisions of Bombay Money Lenders Act, 1946 and also for staying the proceedings of the suit. The said application was disposed of vide order dated 20.10.2016 passed by the Civil Judge, Senior Division, Bishnupur on the ground that it was not proved that the respondent was/ is a money lender and that there was no need for the Court under the provisions of Section 10(2) of the said Act to direct the respondent to file a licence of money lending business.

[3.4] Another application being Judl. Misc Case No.167 of 2017 was filed by the petitioner under Order XIV Rule 2 read with Section 151 of the CPC for taking up issue No.3 as preliminary issue but the same was dismissed by the learned Civil Judge, Senior Division, Bishnupur on the ground that it was barred by res-judicata and also on the ground of its being infructuous. Being aggrieved by the said order dated 29.05.2017, the instant Civil Revision has been filed before this Court on the inter-alia grounds that the respondent has failed to submit an application as provided under Section 10 of the Bombay Money Lenders Act; that the petitioner has not adduced his evidence and exhibited documents to prove that the respondent is a money lender; that the matter relating to the stay of the proceedings of the suit shall be considered only when the respondent has filed an application and that the Learned Civil Judge, Senior Division, Bishnupur has decided the issue No.3 before the evidence being adduced by the petitioner.

[4] Despite a number of opportunities being given to the respondent, no affidavit-in-opposition was filed on his behalf nor was his counsel present in the court on many occasions including today.

[5] It is not disputed by the counsel appearing for the petitioner that the learned Civil Judge, Senior Division vide its order dated 20-10-2016 had disposed the application being Judl. Misc. Case No.312 of 2016 filed by the petitioner and the same reads as under:

"Present: Plaintiff absent.

Ld. Counsel for the defendant.

The matter has been fixed for order. Ld. Counsel for the Plaintiff has now appeared. The present application has been filed by the defendant praying for directing the plaintiff to produce the license U/ The Bombay money Lenders Act, 1946 and also for stay of the proceeding of the suit on the following documents:-

The Plaintiff, through him examination and other evidences on record has proved himself to be a money lender.

S.10 of the said Act, which is a mandatory provision, requires the proceedings to be stayed for three months for the plaintiff to produce his license.

Hence, the application. The plaintiff filed his W/O wherein he denied all the averment made. It is submitted that the present application is not maintainable U/ the said Act and that the plaintiff is not a money lender. It is also submitted that the application is filed to delay the proceeding of the suit and prays for rejecting the same with costs. I have also heard both the Ld. Counsel.

A bore perusal of S. 10 of the said Act shows that if during the trial of any such suit, the Curt finds that the money, lender has not had such license, the Court may, on the application of the money lender, stay the hearing of the suit and require him to produce within a period of of three months a license.

In the case at heard, it has not been proved that the plaintiff is a money lender. The application for stay has also to be filed by the money lender as is stipulated in S.10(2) of the said Act. The defendant cannot pray for directing the Court to produce the license of the plaintiff.

For the above observation and discussions made, I find no merit in the application of the defendant. Hence, the same is dismissed. There is no order as to costs.

J.M. Case stands disposed of accordingly.

Announced."

On perusal of it, it is seen that the learned Civil Judge, senior Division has held that it has not been proved that the respondent is a money lender; that the provisions of Section 10 of the said Act will have no application and that the petitioner cannot pray for directing the respondent to produce the licence of a money lender.

[6] Section 10 of the Bombay Money Lender Act reads as under:

"10. Stay of suits by money-lenders not holding license:-

After the expiry of six months from the date on which this Act comes into force, no Court shall pass a decree in favour of a money-lender in any suit filed by a money-lender to which this Act applies unless the Court is satisfied that at the time when the loan or any part thereof to which the suit relates was advanced, the money-lender held a valid license."

Section 10 provides that no court shall pass a decree in favour of a money lender in a suit filed by him, unless the court is satisfied that at the time when the loan was advanced, the money lender held a valid licence. What does the 'money lender' mean? Section 2(10) of the Bombay Money-Lenders Act, 1946 defines the 'money lender' as (i) an individual, or (ii) an undivided Hindu family; or (iiia) a company, or (iv) an unincorporated body of individuals, who or which- (a) carries on the business of money-lending in the State; or (b) has his or its principal place of such business in the State; and includes a pawn-broker but does not include- (i) Government, (ii) a local authority, (iii) a bank, (iv) the Agricultural Refinance corporation constituted under the Agricultural Refinance Corporation Act 1963; or (v) any other banking, financial or any institution which the State Government may, by notification in the Official Gazette, specify in this behalf. It may be noted that the provisions of Section 10 will apply only when the suit is filed by a money lender. In the present case, the learned Civil Judge has held that the respondent is not a money lender and the petitioner appears to have not challenged the finding of the learned Civil Judge before any appropriate forum. Therefore, the learned Civil Judge, Senior Division had no option but to reject the application being Judl. Misc. case No.167 of 2017 filed by the petitioner by which a prayer was made that the issue No. 3 be taken up as preliminary issue. As long as the finding given by the learned Civil Judge, Senior Division is not either recalled or set aside by an appellate court, there is no reason as to why the issue No.3 shall be taken up as a preliminary issue. The petitioner cannot take advantage of his own mistake of not questioning the correctness of the finding given by the learned Civil Judge, Senior Division. The finding given by the learned Civil Judge, Senior Division that the respondent is not proved to be a money lender, has attained finality, so far as the learned Civil Judge, Senior Division itself is concerned because no one has questioned it and it cannot change its finding on its own. The validity and correctness of the order dated 20-10-2016 passed by the learned Civil Judge, Senior Division is not the subject matter in issue before this court and therefore, no observation can be made by this court thereon. The issue No.3 itself has, in effect, become redundant.

[7] In view of the above and for the reasons stated hereinabove, the instant civil revision petition is devoid of any merit and is accordingly dismissed with no order as to costs. The interim order granted by this court shall stand vacated and the original records pertaining to Original (Money) Suit No.2 of 2014 shall be returned to the learned Civil Judge, Senior Division, Bishnupur by the registry of this court at the earliest possible. The parties are directed to appear before the learned Civil Judge, Senior Division, Bishnupur on 01-07-2019 for further proceedings.