Karnataka High Court
K. Lakshmipathy vs Channaiah on 20 June, 1996
Equivalent citations: ILR1996KAR3351, 1996(6)KARLJ266
ORDER M.F. Saldanha, J.
1. Heard learned Advocates. This is a revision directed against a judgment of the Court of Small Causes in a suit for recovery of money. The plaintiff who is the respondent before me is a money lender and he had advanced to the present petitioner who was the original defendant a sum of Rs. 6,000/- on 31.5.86. It is unnecessary for me to deal with the controversy relating to whether the loan was repaid or not because the defendant contended that he had given certain post dated cheques from time to time to the plaintiff and that these have been encashed by him whereas the plaintiff denied these apart from one for which the learned Judge has given credit. There is a dear finding against the defendant to the effect that no other amount of the loan was repaid. The suit was therefore decreed for Rs. 8113/- with costs, interest etc.
2. The petitioner's learned Advocate has advanced certain submissions which essentially boil down to only one aspect namely that the conclusions drawn by the learned Trial Judge to the effect that the amounts were not repaid are legally untenable. Though the learned Advocate has made his submissions, I have pointed out to him that this would constitute reappreciation of the material on facts, that this is a Civil Revision Petition and not a second appeal and that consequently, such a procedure is not permissible. His challenge must necessarily be restricted to a point of law. The last submission canvassed was that it was obligatory under the law for the plaintiff money lender to satisfy the Court that he had possessed a valid money lending licence both on the date of filing the suit and on the date of transaction namely for the year 1986. This point had arisen in the course of the proceedings and the learned Trial Judge has passed a very peculiar order whereunder he has decreed the suit. He has however directed the plaintiff to produce the licences in question failing which the decree was not to be drawn up and the suit was to be treated as having been dismissed. The submission canvassed was that this procedure is not only irregular but that it has no legal sanction and that this decree must go. Respondent's learned Advocate has submitted that the objection is highly technical and that this is devoid of substance for two reasons. He makes a statement that the plaintiff was in a practical difficulty in producing the licences in this suit because they had been tendered in evidence in some other proceedings in the same Court. He points out however that the plaintiff was very much in possession of these licences, that they were produced in the office of the Court and that the decree was drawn up. He therefore submits that there is due compliance of the requirement of the Section and he submits that the objection now canvassed is devoid of substance. In addition to this, the learned Advocate has informed me that this Court had not stayed the operation of the decree and that therefore the plaintiff has recovered the amount by attaching the salary of the defendant. He therefore contends that the decree having been satisfied, nothing now survives in this proceeding.
3. This Court had admitted the revision proceeding and even if the decree has been executed, if the petitioner were to succeed, that procedure will have to be reversed. The short question is as to whether the decree is liable to be set aside on the ground that the licence for the years in question was not produced prior to the passing of the decree.
4. Section 11 of the Money-Lenders Act reads as follows:-
"After the expiry of six months from the date on which this Act comes into force, no Courts shall pass a decree in favour of a money lender in any suit to which this Act applies, filed by a money-lender, unless the Court is satisfied that the time when the loan or any part thereof to which the suit relates was advanced (and on the date such suit was filed) the money lender held a licence."
The opening clause of the Section starts with the words 'no Court shall pass a decree...'and it is incumbent as per the provisions of that Section that the Court has to be satisfied that at the time when the loan or any part thereof was advanced as also on the date when the suit was filed, the plaintiff was in possession of a valid money lender's licence. There is a bar to the Court passing of a decree in the absence of the production of this document on a scrutiny of which alone the Court can arrive at the conclusion that the plaintiff did possess a valid licence. It is quite apart from the provisions of the Section which are explicit. I need to point out that the law as engrafted in this provision is statutory rule for the reason that where it is a money lending transaction, a 'valid' licence is a condition precedent. The Section uses the word valid and not merely the word 'licence' which pre-supposes the fact that the Court has to be satisfied about the validity of that document. It means that the mere production is not sufficient. In addition to this, the scheme of the law is that the document must be on record when the decree is passed and it is also equally necessary that the licence must be tendered in evidence giving the opposite party an opportunity of challenging it. Courts did come across situations where documents other than valid ones are sought to be produced and therefore comes the stage of scrutiny. If the plaintiff produces a document claiming it to be a valid one, the learned Advocate appearing on the other side will scrutinise it and will possibly cross-examine the plaintiff in order to establish that the document is valid. These are necessary procedures that have to be gone through in the course of the trial and in the absence of these procedures, one cannot argue that mere production of some document in the Court office after passing of the decree is sufficient compliance with the mandatory requirements. It is not a question of being technical but to my mind, the requirement has certain valid justifications and in the absence of the procedures that I have outlined being complied with, there would arise a total legal bar to the Court passing a decree. I have already indicated that the production is condition precedent meaning that in the absence thereof a Court cannot pass a decree.
5. One of the arguments raised by respondent's learned Advocate is that there are sometimes procedural requirements which if breached are curable at a subsequent stage. Under normal circumstances, this situation does hold good in the absence however of the law making a specific provision requiring it to be condition precedent. On the wording of the Section, it is very clear what the law provide for, namely the production of a valid licence first and a passing of the decree thereafter. If the licence was not produced on the date when the decree was passed, a Court could not have passed the decree.
6. Lastly the Learned Advocate submitted that the licences were produced before the decree was drawn up by office. That to my mind, cannot assist the respondent at all because the fact that the office drew up the decree means nothing. From this, one may assume that some licence or licences were produced before the office or the Court but what we needs to take into account is that once the Judge has passed the decree, the Court becomes functus officio. It the decree was not a valid decree when it was passed, it cannot thereafter be resurrected or revived when the plaintiff produced the licence. The crucial date was on the date when the decree was passed and the non-production by that date was to my mind fatal to the case of the plaintiff.
7. In the aforesaid circumstances, the decree stands vitiated by virtue of non-complaince with the provisions of Section 11 which are mandatory. Under these circumstances the revision petition is liable to succeed. The decree in question is set aside and as a necessary consequence, the respondent is directed to refund to the petitioner the amounts recovered from him under the terms of the decree.
8. The respondent's learned Advocate has advanced a very strong plea that this Court must remand the proceeding to the Trial Court to this limited extent in order to afford the respondent-plaintiff an opportunity of producing the licence before the Trial Court in this proceeding. It is his submission that this is not a case in which the defendant had taken up the plea that there was no licence and on the other hand, it is the plaintiff's own case that the licences were very much in existence and that therefore, it would be unjust to the respondent-plaintiff if he is not afforded an opportunity to produce the licence and get the decree rectified.
9. This is a suit filed in the year 1989 and it came to be decreed in the year 1992. the litigation has gone on till 1996 and at this late stage, the effect of granting the respondent's request would be to allow a corrective action to be taken not only at the post decretal stage but at the stage when the matter has been concluded by the High Court. This is not the scheme of the law and this Court already, on numerous occasions has laid down that a rule of finality must be observed with regard to judicial proceedings, what is most material is that subordinate courts are over-burdened, judicial time is precious and litigation cannot be allowed to go back and forwards or in circles as is happening a bit too often. Under these circumstances to my mind, after evaluating all aspects of the case including the status of the parties, the amount of money involved etc. I am of the view that this is not a case in which remand is either permissible nor it be granted. Under these circumstances, it is not possible to accede to the request of the respondent's Learned Advocate. The C.R.P. is accordingly allowed. No order as to costs.