Patna High Court
Bishwanath Jha vs Chandeshwar Jha And Ors. on 22 March, 1983
Equivalent citations: AIR1983PAT267, AIR 1983 PATNA 267, 1983 BBCJ 388 (1983) PAT LJR 558, (1983) PAT LJR 558
JUDGMENT
1. Defendant No. 1 of Money Suit No. 49 of 1972 of the Court of Munsif. Jamui, is the appellant against the judgment of reversal.
2. Plaintiff-respondent No. 1 had instituted the suit for realisation of a sum of Rs. 4,390, being the principal and interest money for the loans advanced to the appellant on 27th Chait 1376 Fasli. 15th Baisakh 1376 Fasli and 15th Jeth, 1376 Fasli, in token whereof hand-notes were said to have been executed by defendant No. 1-appellant. Shortly speaking, the case of the plaintiff was that the appellant took the aforesaid loans as Karta of his joint family on execution of the aforementioned hand-notes, on each such date, as has been specified, stipulating to pay back the same with interest at the rate of 1 1/2 per cent per mensem but the claim for interest has been based only at the statutory rate of one per cent per mensem.
3. The appellant contested the suit denying to have taken any loan or to have executed any hand-note in favour of the plaintiff. His defence was that the hand-notes in question were forged ones. He also denied jointness among the defendants. The other defendants have been impleaded as respondents 2 to 6 in this appeal.
4. The trial court framed various issues and came to the conclusion that the defendants were not members of any joint family and defendant No. 1 had been living separately from other defendants and, therefore, the other defendants, namely respondents Nos. 2 to 6, have not been benefited by the alleged loans, if taken. The learned Munsif, however, held that respondent No. 1 (plaintiff) was the registered money lender and the loans in question were duly advanced by the plaintiff to defendant No. 1. It was further held that the hand-notes in question were duly executed by defendant No. 1-appellant in favour of the plaintiff-respondent No. 1, and they were for consideration. The suit was however, dismissed as being barred by the provisions of Sub-section (5) of Section 7 of the Bihar Money Lenders Act, 1974. (Act No. XXII of 1975) (hereinafter referred to as 'the Act').
5. The plaintiff-respondent No. 1 preferred an appeal before the lower Appellate Court which agreed with all the findings recorder! by the trial court in favour of the plaintiff with regard to due execution of the hand-notes, and the passing of consideration thereof. It also agreed with the finding of the trial court that respondents 2 to 6 were not members of the joint family along with defendant No. 1 appellant. The only question, therefore, which was canvassed before the lower Appellate Court, was that the trial court had committed error of law in holding that the suit was barred by the provisions of Section 7 (51 of the Act. The lower Appellate Court disagreeing with the view of the trial court decreed the suit of the plaintiff as against defendant No. 1-appellant.
6. It is pertinent to notice here that the Act having been passed by the Legislature of the State received assent of the President of India on 20-3-1975. Sub-section (3) of Section 1 of the Act lays down that it came into force at once. As has already been stated above, the loans in question had all been advanced in the year 1376 Fasli which will correspond to the year 1969. The moot question was whether the provisions of the Act, which came into force with effect from 20-3- 1975, would apply to a suit based on the hand-notes executed before the Act came into force and the suit also having been filed before the commencement of the Act. The lower Appellate Court has held that the provision of Section 7 (5) of the Act was prospective and could not be said to be retrospective. Therefore. Section 7 (5) of the Act had no application to the facts of the instant case.
7. In our opinion, the view taken by the lower Appellate Court is perfectly justified in law. As a matter of fact, the question has already been decided by a Bench of this Court in the case of Rai Narain Prasad Sah v. Surya Prasad Sharma (AIR 1977 Pat 98). In that case certain loans were advanced in the years 1960 and 1961. The suit was decreed sometime in the year 1966 and in appeal having been preferred by the debtors one of the points raised was that the provisions of Section 7 (5) of the Act were retrospective and they would apply to suits as well as to appeals against the decree at the time of the hearing of which the Act had already come into force. This contention was clearly negatived. It was held that Section 7 (5) of the Act would by no stretch of imagination be held to be retrospective. It was further held that the word 'suit' in Section 7 (5) of the Act does not include an appeal and that the said provision which renders such a suit, incompetent for failure to maintain accounts is not retrospective and does not render the appeal incompetent.
8. It may be worthwhile to quote the relevant extract from Section 7 (5) of the Act.
"A money lender shall in a suit for recovery of money advanced by him as loan file a copy of the relevant extracts from his register of accounts relating to the said loan and he shall not be entitled to maintain any claim beyond the entries made in his register of accounts."
There was no such corresponding provision in the law which was in force before the commencement of this Act. The law which was in force, was the Bihar Money Lenders Act. 1938. (Bihar Act III of 1938) and the Bihar Money Lenders (Regulation of Transactions) Act. 1939. (Bihar Act VII of 1939). That being the position it stands to reason that a registered money lender, who had advanced some loans before the commencement of the Act, would not have anticipated that a law in future shall come into force which shall enjoin upon him to maintain a register of accounts without the extract of which he would be unable to recover any loan advanced. In the case of Raj Narain Prasad Sah (supra) the point having been decided, it was held that the suit would not fail on the ground of Section 7 (5) of the Act.
9. Mr. Ugrah Singh, learned counsel for the appellant very ingeniously argued that the provision of Section 7 (5) of the Act will hit a suit which is pending when the Act came into force and the suit must be held to be not maintainable. He has based this argument upon a portion of the decision of L. M. Sharma. J., who was speaking for the Bench, in the aforesaid case at page 106 Para 26, which reads thus:
"..... Unless, therefore, there should be some indication to the contrary given by the language, it must be assumed that the provision of Sub-section (5) is applicable to a suit pending in the trial court. By saying so I am not deciding that Sub-section (5) of the Act is applicable to a pending suit. I am merely assuming in favour of the defendants for the purpose of third Question enunciated above ....."
We are afraid, there is no substance in the contention of Mr. Singh.
10. The same learned Judge, namely, L. M. Sharma. J. in the case of Ram Sundar Mandal v. Chaman Mandal (1980 BLJR 508), where the matter sauarely fell for consideration, held that the plaintiff will be deprived of his right to realise his just dues, if Section 7 (5) of the new Money Lenders Act is held to be retrospectively applicable, and this cannot be characterised as a mere interference in the form of procedure. It was, therefore, held that the sub-section did not apply to suits which were already pending from before. As we have already seated earlier, the suit in the instant case was instituted in 1972, that is, nearly three years before the Act came into force. We respectfully agree with the view taken by L, M. Sharma. J. in the case of Ram Sundar Mandal (supra) and hold that the suits instituted before the commencement of the Act cannot attract the penal provision of Section 7 (5) of the new Act. There is thus no merit in this appeal.
11. Mr. Ugrah Singh, in the alternative, argued that the Division Bench decision of this Court, mentioned above, could not be said to be good law in view of numerous decisions, namely, K. C. Mukerji v. Ml Ramratan Kuer. (AIR 1936 PC 49). Mohanlal Jain v. Sawai Man Singhji (AIR 1962 SC 73). Mohanlal Chunilal Kothari v. Tribhovan Haribhai Tamboli (AIR 1963 SC 358). Mt. Rafiquennessa v. Lal Bahadur Chetri (AIR 1964 SC 1511), Fatehchand Him-matlal v. State of Maharashtra (AIR 1977 SC 1825). Having gone through these decisions carefully we find that they do not cover any of the issues involved in the instant appeal. They are all decisions relating to the principle of construction to be applied to statutes in a case where the language is ambiguous with regard to retrospectivity of an Act. The reasons given in the two decisions of this Court, as mentioned above, do not in any way militate against the principles laid down in the cases referred to by learned counsel for the appellant.
12. Mr. Singh also argued that the lower Appellate Court had not taken into consideration some very cogent reasons to hold that the hand-notes in question were not genuine. But, we are afraid similar are the findings of the trial court and they are all questions of fact--the due execution, genuineness and passing of consideration under the hand-notes. We cannot go into these questions of fact in second appeal.
13. Learned counsel further argued that the lower Appellate Court had erroneously held that since there had been no cross-appeal by the appellant in the lower Appellate Court, the question with regard to legality and validity and passing of consideration as found by the trial court could not be attacked. If that had stopped at that there could be some force in the contention of learned counsel, but, in para 7 of the lower Appellate Court's judgment, the court has proceeded further to say:
"..... In his findings as appearing from para 12 of his judgment the respondent Biswanath Jha had taken these loans in the state of separation from other defendants and the hand-notes were legal and for consideration against which also the learned lawyer for the appellants did not submit anything during arguments. So the only question to be determined is whether the suit is hit by the provisions of Section 7 (5) of the Bihar Money Lenders Act. 1974, so as to make the suit fit to be dismissed....."
It will thus be seen that the lawyer for the present appellant in the lower Appellate Court did not make any submission even in course of argument challenging the validity of the finding of the trial court.
14. We are, therefore, constrained to dismiss this appeal without costs throughout.