Patna High Court
Kripal Rai vs Ram Lakhan Rai on 9 August, 1984
Equivalent citations: AIR1986PAT156, AIR 1986 PATNA 156, (1984) PAT LJR 902
ORDER Birendra Prasad Sinha, J.
1. This is an application by the plaintiff. The plaintiff filed a suit for recovery of money amounting to Rs. 1761/- which also included interest. A sum of Rs. 1295/- was advanced by the plaintiff to the defendant on a hand-note executed on 20-8-1972. The plaintiff instituted the suit on 19-8-1975. The defendant-respondent did not appear to contest the suit in spite of notice. The suit was ultimately heard ex parte by the 4th Additional Munsif, Sasaram on 15-12-1978. It was found that the suit was hit by Section 7(5) of the Bihar Money-Lenders Act, 1974 (hereinafter referred to as the Act of 1974). The plaintiff thereupon filed an appeal and the appeal has also been dismissed by the 3rd Additional District Judge, Sasaram. The learned Additional District Judge has also found that the plaintiffs suit is hit by Section 7(5) of the Act. The present revision application has been filed against the two judgments.
2. Mr. Kapildeo Singh learned counsel appearing on behalf of the petitioner has submitted that the suit is not hit by the provisions of Section 7(5) of the Act inasmuch as the said provision cannot be applied retrospectively. In support of his argument learned counsel has relied upon the following decisions of this Court in Raj Narain Prasad Sah v. Surya Prasad Sharma, 1976 BBCJ (HC) 338 : AIR 1977 Pat 98, Ram Sundar Mandal v. Chaman Mandal, 1980 BBCJ (HC) 585 and Bishwa Nath Jha v. Chandreshwar Jha, 1983 BBCJ (HC) 388 : (AIR 1983 Pat 267).
3. The Bihar Money-Lenders Act, 1974 came into force on 20-3-1975. The loan in the present case had been advanced on 20-8-1972. The suit was instituted on 19-8-1975, obviously after coming into force of the Bihar Money-Lenders Act, 1974. Section 7(5) of the Act enjoins upon a money-lender to file a copy of the relevant extracts from his register of account relating to the said loan if he filed a suit for recovery of the money advanced by him. It 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."
It is apparent that if a copy of the relevant extracts from the register of account relating to the said loan is not filed the suit will not be maintainable. The question for consideration is as to whether in a suit filed after the Act came into force but in relation to the loan which had been advanced prior to the coming into force of the Act, it is necessary for the plaintiff to file a copy of the extracts from his register of accounts relating to the said loan in order to maintain the suit?
4. In the case of Raj Narain Prasad Sah, (AIR 1977 Pat 98) (supra) the suit had been filed in 1963 and the appeal in 1966, both before coming into force the Act of 1974. The appeal was pending when the Act came into force. It was urged that the new Act was retrospective in operation and the suit and the appeal ought to be dismissed on the ground that the plaintiff-appellant of that case had not maintained any account and, therefore, could not file a copy of the relevant extracts of such an account. This was not accepted by a Bench of which I was also a member and it was held that Section 7(5) of the new Act was not retrospective in nature and a suit having been filed before the new Act came into force would not fail on the ground that the copy of the relevant extracts of account had not been filed by the plaintiff. In paragraph 26 of the judgment L.M. Sharma, J., who spoke for the Court, divided the question of retrospectivity of the Act into three classes, namely, (a) whether the Act governs the transactions entered into before the commencement of the Act but the suit is filed after it came into force; (b) whether the Act applies to the suits which are pending in the trial court, and (c) whether the provisions of the Act govern a suit which was pending in appeal on the date of its commencement. The first two questions were not decided in that case. On the third question, as I have stated, it was held that a suit which had been filed earlier and an appeal arising out of that suit pending on the date of commencement of the Act will not be governed by the provisions of the new Act. The second question was answered in the case of Ram Sunder Mandal, (1980 BBCJ (HC) 585) (Supra) by L.M. Sharma, J. In that case the suit for realisation of money advanced on the basis of a promissory note had been filed in 1973 but was taken up for hearing in 1977, that is to say, it was pending when the Act of 1974 came into force. It was held that provisions of Section 7(5) of the Act of 1974 cannot be held to be retrospective so as to be applicable in pending actions inasmuch as the said provision was not purely procedural in nature but affected vested rights. The learned Judge observed that the effect of Section 7(5) of the Act of 1974 was clearly to refuse to enforce a lawful claim and, therefore, it was not merely procedural in nature. This view was endorsed by a Division Bench of this Court in the case of Bishwanath Jha, (AIR 1983 Pat 267) (Supra).
In that case also the suit which had been instituted in 1972 was pending on the date the Act of 1974 came into force. In either of the three cases referred to above the first question mentioned above did not come up for consideration. These cases, therefore, are of no help to the petitioner of this case in which the suit was filed after the commencement of the Act of 1974 for realisation of the money advanced earlier.
5. Section 7 of the Act of 1974 casts a duty on the registered money-lender to maintain accounts and to give receipts and inspection of accounts. The relevant portion of Section 7 reads as under :
"7(a) regularly record and maintain, or cause to be recorded or maintained an account showing for each debtor --
(i) the date of the loan, the amount of the principal of the loan and rate per centum per annum of interest charged on the loan; (ii) the amount of every payment received by the money-lenders in respect of the loan and the date of such payment; and
(iii) any other terms which may be agreed upon between the money-lender and the debtor; ....................."
The earlier Money-Lenders Acts also enjoined upon a money-lender to maintain a register of transactions and provisions were made for enforcement of the same and for the action against the money-lender if he failed to do so. But, if the money-lender failed to do so his suit was not liable to be dismissed on that ground. The suits were decreed if the claims were found on merits to be correct even though such registers were not filed. Under the old laws there was neither any provision relating to production of the register nor the suits were liable to be dismissed if the money-lender failed to do so. The present law besides requiring a money-lender to maintain a register as before, further provides under Section 7(5) of the Act that the money-lender shall not be entitled to maintain any claim beyond the entries made in his register of accounts. This provision is, as suggested, prospective in nature and came into force as soon as the Act came into force. It is obvious that if the suit is filed after the commencement of this Act, the plaintiff is required to file a copy of the relevant extracts from his register of accounts relating to the loan. If he fails to do so the suit must fail. The reasons are simple. It cannot be pleaded that the plaintiff had any vested right as was pleaded in the case of Ram Sunder Mandal, (1980 BBCJ (HC) 585) (Supra). In that case the suit had been filed earlier and was pending on the date when this Act came into force and there was no bar to filing a suit without filing the copy of the extracts from the register of accounts. But, in the present case there is a procedural bar and the law specifically provides that a suit will not be maintained unless the extracts from the relevant register of accounts are filed. I am, therefore, of the opinion that a suit filed after the commencement of this Act even for the realisation of a loan advanced prior to coming into force of this Act shall be hit by Section 7(5) of the Act. The learned courts below have correctly found that such a suit is not maintainable.
6. In the result this application must fail and the same is dismissed but without costs.