SUNDARAM FINANCE LTD Vs. STATE OF KERALA

JUDGEMENT

(1.) APPELLANTS which are Non-Banking Financial Companies (NBFCs) registered with reserve Bank of India under S. 45 IA of the Reserve Bank of India Act are challenging the judgment of the learned Single Judge holding that they are "money lenders" within the meaning of that term contained in the Kerala Money Lenders Act, 1958 (hereinafter called "the Act") liable to take licence under S. 3 of the Act for carrying on business in kerala. Admittedly the appellants/petitioners are engaged in money lending in Kerala. However, their case is that being Non-Banking Financial Companies registered under s. 45 IA of the R. B. I. Act, they don't come within the meaning of "person" contained in the definition clause of "money lender" under S. 2 (7) of the Act. An alternate contention raised by the appellants/petitioners is that even if they fall under the main definition clause as "persons", they fall within the exception cl. (f) of S. 2 (7) of the Act which excludes institutions established by or under an Act of Parliament or of the Legislature of a State from the purview of the Act. The learned Single Judge, however, rejected the contentions and held that Non-Banking Financial Companies engaged in money lending in Kerala are covered by the provisions of the Money Lenders Act also and they have to, therefore, conform to the discipline contained in the Act such as taking of licence for every Branch, maintenance of accounts and charging of interest subject to the provisions of the Act and Rules etc. It is against this judgment of the learned Single Judge the appellants/petitioners have filed these Appeals/writ Petitions. We have heard Senior counsel sri. Aravind P. Dattar, Sri. T. P. Kelu Nambiar, Sri. V. Chitambaresh and other counsel appearing for the appellants/petitioners and the Special Government Pleader appearing for the respondents.

(2.) IN the first place, we notice that the appellants/petitioners have not challenged the constitutional validity of the provisions of the Kerala Money Lenders Act and the only relief sought by them before this court is for a declaration that they don't fall within the definition of "money lender" under the Act and so much so, notices impugned in the w. P. (C)s for taking registration under the Act and penalty proceedings issued for violations have to be vacated. We find that the learned Single Judge has exhaustively considered all the arguments advanced by the appellants and rendered the judgment on all the questions raised. Therefore, we have to only examine the correctness of the findings of the learned Single Judge. In other words, no new contention other than what was raised before the Single Judge and decided by him is raised before us.

(3.) AS already noted by us, the argument is two fold. In the first place, appellants/petitioners contend that being companies registered under the Companies Act, they are not persons referred to in S. 2 (7) of the Act and hence are not covered by the definition clause. The second contention is that even if every appellant/petitioner is treated as a "person" with the meaning of that term contained in the definition clause, being registered under S. 45 IA of the R. B. I. Act every appellant/petitioner should be treated as "an institution established by or under an Act of Parliament or the Legislature of a State, which grants any loan or advance in pursuance of the provisions of that Act" as contained in the exception cl. (f) to the definition of "money lender" contained in S. 2 (7) of the Act. In order to appreciate the contentions, we have to necessarily refer to the definition clauses and for completeness we extract the definition clause hereunder in full except explanations 1 and 2 which are not required for the purpose of deciding these cases: