Orissa High Court
Kamesu Nandesu Achari vs A.Sabitri Patrani on 30 November, 2017
Author: A.K. Rath
Bench: A.K. Rath
HIGH COURT OF ORISSA: CUTTACK
S.A. No.115 of 1986
From the judgment and decree dated 25.1.1986 and 7.2.1986
respectively passed by Sri K.C. Mahapatra, learned 2nd Additional
District Judge, Berhampur in T.A. No.31 of 1985 reversing the
judgment and decree dated 24.1.1985 and 5.2.1985 respectively
passed by Shri N.P. Rout, learned Subordinate Judge, Aska in T.M.S.
No.53 of 1980.
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Kamesu Nandesu Achari ................... Appellant
---versus--
A. Sabitri Patrani .................... Respondent
For Appellant : Mr. Baibaswata Panigrahi, Advocate
For Respondent : Mr. Sidhartha Mishra, Advocate
JUDGMENT
P R E S E N T:
THE HON'BLE DR. JUSTICE A.K. RATH
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Date of Hearing :30.11.2017 │ Date of Judgment:30.11.2017
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Dr. A.K. Rath, J.Defendant is the appellant against a reversing judgment.
02. Plaintiff-respondent instituted the suit for realization of Rs.3200/- with pendente lite and future interest. The case of the plaintiff is that the defendant took a loan of Rs.2000/- from her to meet his household expenses. He executed the simple mortgage deed on 12.5.1973 to pay principal with interest within three years, failing which the same shall be realized from the secured property. She is not a regular money lender. Since the defendant failed to pay the loan amount, she instituted the suit seeking the reliefs mentioned supra.
203. The defendant entered contest and filed written statement admitting that he had received the amount. The specific case of the defendant was that the plaintiff was a regular money lender. The transaction was hit under Sec.8 of the Orissa Money Lenders Act. The plaintiff had given loan to his wife. He instituted T.M.S. No.52 of 1980 for realization of amount.
04. On the interse pleadings of the parties, learned trial court struck four issues. Parties led evidence, oral and documentary to substantiate their cases. Learned trial court came to hold that plaintiff is a regular money lender. The alleged transaction was hit under Sec.8 of the Orissa Money Lenders Act. Held so, it dismissed the suit. Felt aggrieved, the plaintiff filed T.A. No.31 of 1985 before the learned 2nd Additional District Judge, Berhampur. Learned lower appellate court hold that the plaintiff was not a regular money lender and allowed the appeal.
05. The second appeal was admitted on the following substantial question of law.
"Whether the plaintiff is a money lender in view of the amendment of the Orissa Money Lenders Act under Orissa Act 54 of 1975 and in view of the decisions reported in 25(1959) C.L.T. 215 (Jambeswar Behera v. Kasi Naik) and 34(1968) C.L.T. 509 (Bakula Khan and another v. Indramani Prusty) ?"
06. Mr. Baibaswata Panigrahi, learned Advocate on behalf of Mr. S. K. Padhi, learned Senior Advocate for the appellant submits that the plaintiff was a regular money lender. The alleged transaction was hit under Sec.8 of the Orissa Money Lenders Act. P.W.1 in his evidence had admitted that the plaintiff was a money lender. In view of the same, learned lower appellate court is wholly unjustified in reversing the finding of the learned trial court.
307. Per contra, Mr. Sidhartha Mishra, learned Advocate on behalf of Mr. B.B. Ratha, learned Senior Advocate for the respondent submits that on a threadbare analysis of the evidence on record, learned lower appellate court came to hold that plaintiff was not a regular money lender. The alleged transaction was prior to amendment of Orissa Act 54 of 1975. Learned trial court misread the evidence of P.W.1. P.W.1 in his evidence stated that he was not a regular money lender.
08. Before adverting to the contentions raised by the learned Advocates for both the parties, it will necessary to set out some of the provisions of Money Lenders Act. Section 2(i) of the Act defines 'loan' as follows:
" 'loan' means an advance whether of money or in kind or interest made by a moneylender and shall include a transaction on a document bearing interest executed in respect of a past liability and any transaction which in substance, is a loan, but shall not include,--
(1) a loan advanced by the State Government or by any local body authorised by the State Government or by a Co-operative Society; (2) a deposit of money in a Post Office Savings Bank or a deposit of money or other property in any other Bank or in a company or with a Co- operative Society;
(3) the amount or the proportionate amount, as the case may be, payable under a mortgage by the purchaser at a sale in execution of a decree of a Court or otherwise of the whole or part of the properties subject to a mortgage, the purchase having been made, prior to the coming into force of this Act;
(4) any loan or loans due to a widow on the 1st February, 1930, who on that date did not own any other property; provided that the principal amount of the loan or loans does not exceed rupees two thousand;"4
xxx xxx xxx Section 4 of the Act provides as follows:
"No person to carry on money lending business without being registered.--No person shall carry on the business of money lending after the 22nd day of November, 1975 unless he is registered as a money lender under this Act".
xxx xxx xxx Section 8 of the Act provides as follows :
"8. Suit of recovery of loan maintainable by registered money lenders only--A money lender shall not be entitled to institute a suit for the recovery of a loan advanced by him after the date on which this section comes into force, unless he was registered under this Act at the time when such loan was advanced :
Provided that a money lender shall be entitled to institute a suit to recover a loan advanced by him at any time in the course of two years after the date on which this section comes into force, if he is granted a certificate of registration under Section 5 at any time before the expiration of the said year."
09. This Court in the case of Kotini Kashinath Senapathy vs. Sadi Brahmanandam, ILR 1964 CUT. 941 held that in deciding the question whether there is regular course of business of money- lending, each case must be decided upon its own facts and peculiar features, and no hard and fast rule can be laid down. It further held that the business is in regular course, the Court must record a finding that not only there is a repetition of the loan, but there must be continuity in the transaction and the business of money-lending must be a part and parcel of a system. The same view was reiterated in Bakaulla Khan and another v. Indramoni Prusty, 34 (1968) C.L.T. 508.
10. The alleged transaction was prior to amendment of Orissa Money Lenders Act (Act 54 of 1975). The same may not hit 5 under Sec.8 of the Orissa Money Lenders Act. But then, the plaintiff was not examined as a witness. She executed a power of attorney in favour of her husband. Her husband had deposed as a witness. The question does arise as to whether the power of attorney holder can depose for the principal for the acts done by the principal ?
11. The apex Court in the case of Janki Vashdeo Bhojwani and another v. Indusind Bank Ltd. and others, AIR 2005 SC 439, in paragraph-13 held as follows:-
"13. Order III, Rules 1 and 2, CPC, empowers the holder of power of attorney to "act" on behalf of the principal. In our view the word "acts" employed in Order III, Rules 1 and 2, CPC, confines only in respect of "acts" done by the power of attorney holder in exercise of power granted by the instrument. The term "acts" would not include deposing in place and instead of the principal. In other words, if the power of attorney holder has rendered some "acts" in pursuance to power of attorney, he may depose for the principal in respect of such acts, but he cannot depose for the principal for the acts done by the principal and not by him. Similarly, he cannot depose for the principal in respect of the matter which only the principal can have a personal knowledge and in respect of which the principal is entitled to be cross-examined."
12. In view of the authoritative pronouncement of the apex Court in the case of Janki Vashdeo Bhojwani and another (supra), the suit would fail for non-examination of the plaintiff. The substantial question of law is answered accordingly.
13. A priori, the impugned judgment is set aside. The appeal is allowed. Consequently, the suit is dismissed. There shall be no order as to costs.
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Dr. A.K. Rath,J.
Orissa High Court, Cuttack The 30th November, 2017/Basanta