Patna High Court
Ram Lakhan Prasad And Ors. vs Narain Prasad on 30 July, 1984
Equivalent citations: AIR1986PAT154, AIR 1986 PATNA 154, (1985) PAT LJR 126
JUDGMENT Harilal Agrawal, J.
1. This appeal is by the defendants against whom the plaintiff-respondent had instituted Money Suit No. 63 of 1975 on 11th Dec. 1975, for recovery of a sum of Rs. 7,230/- on the basis of two handnotes dated 25th and 27th March, 1974, (Exhibits 2 and 2/a), each for Rs. 3,000/-. In the written statements, filed by different sets of the defendants, the suit was contested, inter alia, on the grounds that the handnotes in question were executed in favour of one Sarju Prasad and not in favour of the plaintiff and Sarju Prasad, being a friend of the plaintiff, had manipulated the handnotes in his favour for instituting the suit in question. Both the Courts below, however, have rejected the defendants' defence and have concurrently held that the handnotes were genuine and for consideration, and accordingly, decreed the suit.
2. In this Court Mr. Wasi Akhtar, appearing for the appellants, has pressed two questions of law, namely, (i) an adverse inference should have been drawn by the courts below for non-filing of the books of account admittedly being maintained by the plaintiff, and (ii) the suit was not maintainable for non-compliance of the provisions of Section 7(5) of the Bihar Money-Lenders Act, 1974 (Act 22 of 1975; hereinafter referred to as 'the Act').
3. From a perusal of the judgments of the courts below it does not appear that any issue touching the second point was framed. However, since it is a question of law, I shall deal with it hereinafter, but before that I will dispose of the first question itself, i.e., failure of the courts below to draw adverse inference for non-filing of the books of accounts.
Both the courts below have decreed the suit of the plaintiff on consideration of a large number of materials on the record. The presumption of passing of consideration under Section 118 of the Negotiable Instruments Act being there, the courts below were not bound to draw adverse inference against the plaintiff for non-filing of the account books. After all, it is an inference of fact to be drawn on various attending circumstances and does not make out a question of law.
4. I will now take up the second question. The new Money-Lenders Act came into force on the 20th March, 1975 or on 25th of July, 1975 when it was published in the Official Gazette, as held by a learned single Judge of this Court in the case of Raghubir Prasad v. Shrimi Narain Tiwari, 1983 BBCJ (HC) 587 : (AIR 1984 Pat 25). The loans in question were taken, as already seen earlier, under the two handnotes on 25th and 27th of March, 1974. The loans were, therefore, given before the coming into force of the new Act. This Court in several cases, namely, Raj Narain Prasad San v. Surya Prasad Sharma, AIR 1977 Pat 98, Ram Sunder Mandal v. Chaman Mandal, 1980 BBCJ (HC) 585, Bishwanath Jha v. Chandreshwar Jha, 1983 BBCJ (HC) 388 : (AIR 1983 Pat 267) and Raghubir Prasad's case (supra), has held that the provisions contained under Section 7(5) of the Act were not retrospective in nature. In the first, third and the last cases the advancement of the loans as well as the institution of the suits were before the commencement of the Act and in the first case the matter was pending in appeal. It was held in the first case, which was relied upon in the third case, that an appeal was not included within the ambit of the expression "suit" in Section 7(5) of the Act, but the question as to whether it applied to pending suit was left open. The suit was filed earlier and it was held that the provision being not retrospective in nature, obviously did not apply and the question "as to what would be the position in a suit filed after the new Money-Lenders Act where the cause of action had arisen earlier than the passing of the Act" was not decided as it did not call for any such decision.
5. It may, however, be mentioned that under the earlier money lenders laws also it was enjoined upon the money lenders to maintain a register of transactions, but the provision in the nature of Sub-section (5) of Section 7 to file a copy of the relevant extracts of the register of accounts relating to the loan in question, was not there nor was there any indication in the old law that failure on the part of the money lender to maintain such a register would lead to the dismissal of his suit.
6. In the case before me, however, the position is that although the loan was advanced before corning into force of the new Act, the suit was filed after the Act came into force. Question arises as to whether the present suit should have been dismissed on account of the non-compliance of the said provision as the provision has now been held to be peremptory in nature by this Court in Ram Sunder Mandal's case, (1980 BBCJ (HC) 585) (supra).
7. In order to appreciate the point it is better to quote Section 7(5) which reads as follows :
"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."
From the above provision it is manifest, as already held in the earlier case, that if the money lender does not file a copy of the relevant extracts from his register of the account in question, he shall not be entitled to maintain the claim, leading to the failure of his suit. It is well known that failure to maintain a register, under the provisions of the old laws, did not lead to the dismissal of the action. Before coming into force of the new Act, therefore, a money lender might be committing violation of maintaining the register and obviously, therefore, he could not comply with the requirement of Sub-section (5) -- situation which was not known to him when the loan was made, and anticipated that such a law in future shall come into force which shall require him to maintain a register of accounts without the extracts of which, he would be unable to recover any loan advanced. In that view of the matter, I hold that a suit for recovery of a loan advanced before the date of the commencement of the new Act which happened to be instituted after the coming into force of the 1974 Act, will not fail on the failure of the plaintiff to comply with the provisions of Section 7(5) of the Act. I feel fortified in my view from the observations made in para 8 of the decision in Bishwanath Jha's case (AIR 1983 Pat 267) (supra).
I do not, therefore, find any substance in the second contention of the learned counsel for the appellants and hold that the suit has been rightly decreed.
8. The appeal is accordingly dismissed, but since nobody has appeared in this Court for the respondents, there shall be no order as to costs.