BUDHU SAO Vs. BALESWAR PROSAD SAO

JUDGEMENT

(1.) Special leave granted.

(2.) A mortgage action instituted by the petitioners against the respondents was decreed by the Additional Subordinate Judge, Biharsharif for a sum of Rs. 19,027/- together with interest at the rate of 9 per cent per annum and costs. One of the issues raised in the suit was whether the suit was hit by sec. 8 of the Bihar Money-lenders Act, 1974 which prevented a court from entertaining a suit by a money-lender from recovering a loan advanced by him after the commencement of the Act unless such money-tender was a registered money-lender. The issue directly raised the further question whether the plaintiff No. 1, who advanced the money was a moneylender The question was answered by the learned Subordinate Judge in these words:

(3.) We are unable to agree with the view taken by the High Court that the decree of the learned subordinate judge became non est on the issue of a notification under sec. 23 of the Bihar Money-lenders Act. It is true that under sec, 25 of the Bihar Money-lenders Act when a dispute is referred to a Conciliation Board, the jurisdiction of a court in any suit or proceeding in respect of the subject-matter of the dispute stands barred from the date of the notification under sec. 23; and that any suit or proceeding in a court in regard to the whole or any part of such dispute shall be discontinued. Section 23 enables the State Government to refer any dispute, whether any suit or proceeding be or be not pending in a court with regard to the whole or part of the subject of such dispute, to a Conciliation Board for the purpose of bringing about an amicable settlement of such dispute. The explanation to see. 23 defines a 'dispute' as meaning "a dispute or difference regarding loan or loans the amount of which singly or in aggregate exceeds one hundred rupees (excluding interest) between a debtor and his moneylenders".Therefore, the foundation for a notification under sec. 23 is the existence of a dispute between a debtor and a money-lender. The question whether the person who has lent the money is a money-lender or not is undoubtedly a question relating to a jurisdictional fact. Whenever a reference is made under see. 23, it is open to the person who had advanced the money to approach the civil court in an appropriate proceeding for a decision of the jurisdictional fact. In the present case, the jurisdictional fact, namely. whether the plaintiffs were money-lenders or not has already been decided by the learned subordinate judge and it is presently the subject matter of an appeal before the High Court. So long as the finding of the learned subordinate judge stands unreversed, there is no scope for a notification under sec. 23 or the application of sec. 25. In the circumstances, the only appropriate order that can be made is to set aside the order of the High Court under appeal and direct that the appeal No. 558 may be disposed of expeditiously. The appeal is allowed in the manner indicated. There will be no order as to costs.