DHARAMDAS MOTIBHAI WANI Vs. SHIDYA JATRYA BHIL

JUDGEMENT

(1.) BOTH the Second Appeal and the Civil Revision Application have been filed by the original plaintiff. The Second Appeal arises from the suit he filed in the Court of the learned Civil Judge, Junior Division, Nandurbar, for recovery of Rs. 1,500/- from the four defendants in the said suit. The Civil Revision Application arises from the suit he filed for the recovery of Rs. 600/- in the same Court from the defendant in that suit. Both the claims are based on promissory notes which are executed after filing in blanks on a printed form, which is in Marathi. The printed form provides space for rate of interest in both in figures and in words and in both the promissory notes these blanks were not filled in. IN both the suits no interest was claimed upto the date of the suit. In both the suits, contentions were taken as to whether the transactions were governed by the Bombay Money Lenders Act, 31 of 1947, (hereinafter for the sake of brevity referred to as the "money - Lenders Act. " ). The learned trial Judge thought that as no interest was claimed in the suits, the transactions were not "loans" within the meaning of that word in S. 2 Sub - s (9) of the Money - Lenders Act. Evidence was led on the point as to whether the plaintiff was a money - lender and whether he carried on the business of money - lending. But the learned trial Judge did not give any finding on that point. After disposing of the other contentions of the defendants as to whether the promissory notes were brought about by fraud or consideration had failed, the learned trial Judge decreed the two suits in favour of the plaintiff.

(2.) THE defendants in both the suits appealed to the District Court at Dhulia. The only contentions taken before the learned Assistant Judge, who heard the appeals, were whether the plaintiff was a money - lender and secondly whether the transactions were "loans. ". ON the second point, the learned Assistant Judge took the view that as the documents in the suits were promissory notes and a promissory note was not excluded from the definition of the word "loan" in the Money - Lenders Act, it was irrelevant whether the interest was mentioned in the promissory note or not. He was of the opinion that the transactions covered by the promissory notes were "loans" as defined in S. 2, sub - section (9) of the Money - Lenders Act. On the first point, he gave a finding of fact that the plaintiff was carrying on the business of money - lending and was a money - lender within the meaning of that expression in S. 2, sub - section (10) of the Money - Lenders Act.

(3.) SECTION 2, sub - s. (9) of the Act defines "loan" as meaning an advance at interest. It further provides that it does not include an advance made on the basis of a negotiable instrument as defined in the Negotiable Instruments Act, 1881, other than a promissory note. It is clear that if the advance is made on the basis of a promissory note, it would not be excluded from the definition of a loan if it was an advance at interest. Section 2, sub - s. (10) defines a money - lender as a person who carries on the business of money - lending in the State. Section 10 of the Act provides that no Court shall pass a decree in favour of a money - lender in any suit filed by him to which the Money - Lenders Act applied unless the Court was satisfied that at the time when the loan or any part thereof, to which the suit relates was advanced. The money - lender held a valid licence. sub - section (2) provides that if during the trial of any such suit, the court finds that the money - lender had not held such licence, the court may, on the application of the money - lender, stay the hearing of the suit and require him to produce a licence within a period of three months.