ARVINDAKSHAN N Vs. OLYMPIC CREDIT CORPORATION

JUDGEMENT

(1.) This Review Petition is filed by the appellants 1 and 2 in the above Appeal to review the judgment and decree of this Court in the above Appeal. The facts of the case are briefly as follows. The Review petitioners were the appellants in A.S. No. 46 of 1998 on the file of this Court. That appeal was filed by them against the judgment and decree in O.S. No. 87 of 1993 on the file of the Sub Court Kottayam. That suit was filed by the plaintiff against defendants 1 and 2 for realisation of a sum of Rs. 1,63,457/- with interest at the rate of 18% per annum. The case of the plaintiff was that the defendants borrowed a sum of Rs. 1,10,000/- from the plaintiff after executing a promissory note on 5.2.1990 agreeing to repay the same with interest at the rate of 18% per annum. It was further alleged that the defendants paid a sum of Rs. 6,093/- on 24.4.1990 and that no further amounts were paid by the defendants.

(2.) The defendants contested the suit, contending inter alia that they had not borrowed any amount from the plaintiff. The defendants had entered into a hypothecation agreement with the plaintiff, wherein the plaintiff agreed to pay an amount of Rs. 1,10,000/- to one Mr. E.K. Thankappan, who was the R.C. Owner of a bus bearing Reg. No. KRO 239. Subsequently the possession of the bus was handed over to the defendants without effecting the change in the Registration Certificate. On the bona fide faith and belief that the plaintiff had paid the said amounts to Mr. Thankappan, the petitioners/defendants herein signed certain blank papers, which were entrusted with the plaintiff. The petitioners started to pay the installments in accordance with the hypothecation agreement, and the first installment was paid accordingly. But the plaintiff did not pay the amounts to Mr. Thankappan, and he, colluding with the plaintiff, seized the bus from the defendants. Subsequently the plaintiff initiated action against the defendants, and the matter was tried before the Sub Court, Kottayam. The Sub Court decreed the suit allowing the plaintiff to recover from the defendants Rs. 1,62,457/- with interest at the rate of 18% per annum on the principal sum of Rs. 1,10,000/- from 21.1.1993 till realisation. Against that judgment and decree the defendants filed A.S. No. 46 of 1998 before this Court. This Court, as per judgment dated 16.12.2009 dismissed that appeal confirming the judgment and decree of the Trial Court. In that appeal, the appellants relied on the decision reported in Kaloji Talusappa Gangavathi v. Khyanagouda and ors., 1970 AIR(SC) 1420 and argued that this Court is bound to dismiss the suit as the plaintiff firm was carrying the money lending business without license. But this Court observed that that argument cannot be raised at this stage in view of the fact in the written statement the defendants have no case that the plaintiff firm had no license to conduct the money lending business. This Review Petition is filed by the petitioners/appellants mainly on the ground that this Court should have dismissed the suit as the plaintiff firm was not having any license to conduct money lending business. When the Review Petition came up for admission the learned counsel for the review petitioners submitted that in view of the decision reported in Kaloji Talusappa Gangavathi v. Khyanagouda and ors. , the suit is not maintainable as the plaintiff firm was carrying on the money lending business without license. That decision is not applicable on the facts of this case. In that case, it was held that as per Section 9 of the Hyderabad Money Lenders Act in every suit relating to a loan if it is proved that the plaintiff is a money lender as defined in Sub Section (7) of Section 2, but does not hold a license granted under Section 3, the Court shall dismiss his suit. But there is no such provision in the Money Lenders Act, 1958 (Kerala) to dismiss the suit if the money lender has no money lending license. Section 17 of that Act provides that whoever carrying business on money lending without license shall be punished with fine which may extend up to Rs. 1,000/-. Section 20 of that Act makes it clear that if a money lender is guilty of an offence punishable under that Act, the contract made by him in relation to his business of money lending, shall not be void by reason only of that offence nor shall he by reasons only of that offence loose his lien on or right to the pledge or to the loan and interest and other charges if any payable in respect thereof. Therefore, it is clear that the present suit is not liable to be dismissed only on the ground that the plaintiff had no money lending license. The result is that the Review Petition is liable to be dismissed as it is without any merits.