Orissa High Court
Gyanananda Sen vs Ranjit Kumar Das And Anr. on 20 January, 2003
Equivalent citations: AIR2003ORI166, AIR 2003 ORISSA 166
Author: B. Panigrahi
Bench: B. Panigrahi
JUDGMENT B. Panigrahi, J.
1. This appeal is directed against the judgment and decree passed by the appellate Court in Money Appeal No. 5/94 affirming the plaintiffs dismissal of the suit in M. S. No. 8/5 of 1994/92-111 passed by the Addl. Civil Judge, Senior Division, Balasore.
2. The appellant-plaintiff had advanced a loan of Rs. 15000/- as a family accommodation to defendant No. 1. It is alleged that the respondent-defendant No. 2 on several previous occasions used to take hand loans from the plaintiff-appellant to meet his household and other expenses and was repaying those amounts in time. On 16-7-89 during evening hours the respondent-defendant No. 1 approached the plaintiff for a loan of Rs. 15,000/-. But the appellant-plaintiff did not have sufficient cash at that time, therefore, he advanced him Rs. 5000/- and had taken a hand receipt from him with the understanding that on the day following both the defendants would go and execute an agreement in favour of the plaintiff-appellant and upon such execution he would pay the balance amount. Pursuant to the previous understanding, it appears, both the defendants went to the Court premises after purchasing the stamp papers for the purpose of executing the agreement. Defendant No. 1 was the main borrower whereas defendant No. 2 acted as a guarantor for him. It was agreed by and between the parties that the defendants will repay the suit loan with interest to the plaintiff. Accordingly the balance amount of Rs. 10,000/- was paid to defendant No. 1 by the appellant. Thus defendant No. 1 had incurred a loan of Rs. 15,000/- on 16-7-89 from the plaintiff agreeing to repay the principal with the interest at the contractual rate. The appellant thereafter demanded the defendants to repay the loan, but when they developed casual attitude towards the plaintiffs demand, he served a legal notice to them to which they also observed complete silence.
3. Defendants contested the suit by stating that the plaintiff was a regular moneylender. He was carrying on money-lending business till the date of the suit. As the defendants reposed full confidence in the plaintiff they approached for a loan. The plaintiff asked them to come to the Court area and he would advance the loan after executing the document. Accordingly stamp papers were purchased by the defendants and they were asked to put their blank signatures on those stamp papers. The plaintiff asked them to wait till he brought the money from the bank. Even though they waited till evening, the plaintiff did not turn up. On the following day when the defendants approached him for money the appellant asked them that they had already taken the loan and he would not return the agreement.
4. Both the Courts consistently held that defendant No. 1 consciously executed the agreement and put his signature on such document. It was similarly held that the defendant No. 2 executed a deed of guarantee. In view of the concurrent findings by the Courts below it can safely be concluded that both the defendants had executed agreement with an undertaking to repay the loan. From the letters sent by defendant No. 1 to the plaintiff-appellant it has further transpired that he had undertaken to repay the loan. There is no document to show that apart from this loan the defendants had incurred any other loan from the plaintiff. Therefore, those letters purported to have been sent by defendant No. 1 would mean that the defendants had admitted to repay the loan, if he would be given some more time.
5. The defendant-respondents have taken a stand that the appellant was a money-lender in regular course of business. It has been held that he was a proprietor of a firm in the name and style "Ananta Gopal Money Lender Firm". The licence was valid for carrying on money lending business till 23-9-1994.
6. Mr. Ghose, learned Advocate appearing for the appellant has strongly contended that by the time the money was advanced the money-lending firm did not come into existence and it was subsequently registered. Such argument cuts no ice inasmuch as the plaintiff had registered himself as a money-lender commencing from the year 1989. On the date of the suit undisputedly the plaintiff was carrying on money-lending business. He did not obtain any certificate from the competent authority as required under Section 18-B of the Orissa Money-Lenders' Act (hereinafter referred to as "Act"), Had he obtained such certificate authorising him to file a suit for recovery of the amount it could have been maintainable under Section 18-B(8) of the Act. The provisions of Section 18-B(8) takes away the right of the money-lender to file a suit for recovery of the amount without a certificate being obtained from the competent authority under Sub-section (2) of Section 18-B of the Act. This point has been already discussed by the Lower Appellate Court on the basis of a judgment, reported 1994 (1) CJR 145 in the case of Konchada Raghunatha Rao v. Puspa Lolana Samulu (dead) and after her P. N. Baburao (dead) and after him P. Vijaya Kumar Samuel and others. Although the suit was filed in 1992 till date no clearance was obtained from the competent authority as required under Sub-section (2) of Section 18-B of the Act. Therefore, the Court cannot entertain the plaintiffs claim for recovery of the amount even otherwise it is held that the defendants had incurred loan from the plaintiff.
7. In the result, the appeal is dismissed for non-compliance of the provisions of Section 18-B(2) and (8) of the Orissa Money-Lenders' Act. The judgment and decree passed by the Courts below are hereby affirmed.
8. In the circumstances, there shall be no order as to costs.