Orissa High Court
Benu Behera vs Gourahari Pradhan on 10 November, 2017
Equivalent citations: AIR 2018 (NOC) 387 (ORI.)
Author: A.K.Rath
Bench: A.K.Rath
HIGH COURT OF ORISSA: CUTTACK
S.A.No.183 of 1990
From a judgment and decree dated 19.12.1989 and 22.1.1990
respectively passed by Mr.K.B.Swain, learned Subordinate Judge,
Chatrapur in Title Appeal No.18 of 1985 confirming the judgment
and decree dated 17.9.1985 and 30.9.1985 passed by learned
Munsif, Kodala in T.M.S.No.67 of 1983.
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Benu Behera .... Appellant
Versus
Gourahari Pradhan .... Respondent
For Appellant -- Mr.Sidhartha Mishra, Adv.
For Respondent -- Mr.Byomakesh Sahoo, Adv.
JUDGMENT
PRESENT:
THE HONOURABLE DR. JUSTICE A.K.RATH
Date of Hearing: 03.11.2017 & Date of Judgment:10.11.2017
Dr.A.K.RATH, J.The defendant is in appeal against the affirming decision of the learned Subordinate Judge, Chatrapur.
2. The plaintiff-respondent instituted the suit for recovery of Rs.3800/- with pendente lite and future interest @9% per annum from the defendant. The case of the plaintiff is that on 9.4.1973 the defendant had executed a registered simple mortgage deed in his favour for a loan of Rs.3000/-. The defendant agreed to pay the interest @Rs.2/- percent per month. He further agreed to pay the 2 interest at the end of every year and pay the entire amount within three years. It was stipulated that in the event the amount is not paid within the time stipulated, the plaintiff shall be at liberty to realize the same. While the matter stood thus, the defendant paid an amount of Rs.500/- on 7.3.1976, which was endorsed on the back side of the mortgage deed. All the persuasions made by the plaintiff to pay the rest amount ended in a fiasco. With this factual scenario, he instituted the suit.
3. The defendant filed a written statement denying the assertions made in the plaint. The specific case of the defendant is that the plaintiff was a regular money lender. He had no licence to carry on money lending business. It was further pleaded that the suit land belongs to his wife. He was not pulling on well with her. She intended to sell the property to the outsiders. At this juncture, the plaintiff persuaded him to execute a mortgage deed. He executed the deed in good faith. He had not received any money.
4. Stemming on the pleadings of the parties, the learned trial court struck four issues. Both parties led evidence. The learned trial court held that the plaintiff was not having a regular business in money lending. The mortgage deed dated 9.4.1973, Ext.1 is real one. The defendant had received the amount. He had paid Rs.500/-. Held so, it decreed the suit. The unsuccessful defendant filed Title Appeal No.18 of 1985 before the learned Subordinate Judge, Chatrapur, which was eventually dismissed.
5. The appeal was admitted on 19.3.1991 on the following substantial questions of law. The same are :
"(1) Whether the suit is hit by the provisions of Sections 8 and 18 of the Orissa Money Lenders Act ?3
(2) Whether the courts below are correct in ignoring Exts.A and B though the originals have been called for in this case ?"
6. Mr. Sidhartha Mishra, learned Advocate on behalf of Mr.B.B.Ratho, learned Senior Advocate for the appellant submitted that the plaintiff was a regular money lender. He had no money lending licence. The alleged transaction is hit by Sec. 8 of the Orissa Money Lenders Act.
7. Per contra, Mr. Byomakesh Sahoo on behalf of Mr.A.K.Dalai, learned Advocate for the respondent contended that both the courts below concurrently held that the plaintiff was not a regular money lender. The mortgage deed was executed by the defendant in favour of the plaintiff. The plaintiff had received an amount of Rs.3000/-. He paid an amount of Rs.500/-. Since the rest amount was not paid, the plaintiff instituted a suit. The defendant is liable to pay the balance amount with interest.
8. Before adverting to the contentions raised by the learned Advocate 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;
4(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;"
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."
9. The defendant admits that he had executed the mortgaged deed, Ext.1. The plea taken by the defendant that he had not received any amount of Rs.3000/-, had been negative by both the courts. Both the courts below held that the defendant paid amount of 5 Rs.500/- on 7.3.1976. Further if the plaintiff had not received the said amount, he could not have paid the said amount. Thus the alleged transaction is a loan within the meaning and ambit of Sec. 2(i) of the Orissa Money Lenders Act.
10. Thus the question arises as to whether the plaintiff is entitled to recover the said amount ? The specific plea of the defendant was that the plaintiff was carrying on business of money lending. He had no licence. Ext.A is a registered mortgage deed dated 30.12.1970. The same was executed by one Padma Charan Tripathy in favour of the plaintiff for advancing money. Ext.B is another registered mortgage deed dated 1.8.1973 executed by Bauribandu Padhi and Kailash Chandra Padhi in favour of the plaintiff. On a cursory perusal of Exts.A & B, it is evident that the plaintiff lent money to the mortgagers. Those mortgage deeds had been marked as exhibits without objection. From 1970-73 at least three transactions had been established. Some of these appear to be in quick succession. From these the only available inference would be that there was continuity in the transaction and the business of money lending was a part and parcel of a system adopted by the plaintiff. Transactions are not sporadic or casual. The findings of the courts below that the transaction lack element of continuity and the transaction in question cannot be a part and parcel of a regular system of money lending business of the plaintiff is difficult to fathom.
11. In Gajendra Sahu Vrs. Rama Rout, ILR 1974 CUT. 1082, there were five transactions in 1961 to 1966. This Court held that inference would be that there was continuity in transactions. Those are not casual act representing occasional loans to relations friends or acquaintances. The ratio in the said act applies proprio vigore to the instant case as well.
612. In view of the discussions made above, the irresistible conclusion is that the plaintiff was a regular money lender. The alleged transaction is hit under Sec.8 of the Orissa Money Lenders Act. The findings of the courts below are perverse. The substantial questions of law are answered accordingly.
13. A priori, the impugned judgments are set aside. Consequently, the suit is dismissed. The appeal is allowed. No costs.
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Dr.A.K.Rath, J.
Orissa High Court, Cuttack.
The 10th November, 2017/CRB 7