VITHAL KRISHNA SHANBHAG Vs. SOGMAL NATHMAL AND CO

JUDGEMENT

(1.) This is an appeal from an order as well as an ex partc decree of the City Civil Court. The suit was filed as a summary suit on a Promissory note for Rs. 3000/- ; and in this suit the defendant made an application under Section 30 of the Bombay Money-Lenders Act, 1946. This application was dismissed by Judge K. M. Vakil on the 18th of February, 1955, as he held that the defendant was not entitled to take out a notice under Section 30 of the Act in a summary suit without obtaiuing leave to defend the suit. Against this order an appeal was admitted to this Court. In the meantime a summons for judgment was taken out and conditional leave to defend was granted; but as the defendant was unable to comply with the condition for deposit of money an ex parte decree has been passed against him. An appeal has now been filed against this ex parte decree as well. Both the appeals are before us for hearing and final disposal.

(2.) The only point, which is a neat question of law, that really arises for determination is whether the defendant is entitled to present an application under Section 30 of the Bombay Money-Lenders Act, notwithstanding the fact that ho has failed to obtain leave to appear and defend the suit. Now, it is necessary, in the first instance, in order to determine this question to look to some of the provisions of the Bombay Money-Lenders Act. The preamble makes it plain that the object of the Act is to regulate and control the transactions of money-lending. A "loan" is defined in Section 2(9) as an advance at interest whether of money or in kind and although by Sub-clause (f) of the definition an advance made on the basis of a negotiable instrument is excluded, as advance made on a promissory note is included within the definition. Then Sub-section (17) defines "suit to which this Act applies'' as meaning any suit or proceeding for the recovery of a loan made after the date on which the Act comes into force. Then Sections 18 to 29 lay down various provisions which have to be followed for the purpose of taking accounts as between a money-lender and his debtor. Section 29 casts upon the Court an obligation, even in a matter which is heard ex parte, to do certain acts in relation to the taking of accounts in a suit to which the Act applies and this obligation apparently has to be carried out even if the defendant is absent and does not seek the intervention of the Court to have an account taken. Then we come to Section 30 which is in these terms.

(3.) Mr. Walawalkar on behalf of the appellant has attempted to canvass a far wider proposition. He urges that in a case to which the Money-Lenders Act applies, the provisions of Order XXXVII of the Civil Procedure Code do not apply at all; and he says that the moment an application under Section 30 is made in a suit, if it happens to be a summary suit it becomes converted into an ordinary suit. His argument is that a special procedure has been prescribed by the Money-Lenders Act in respect of suits to which the Act applies. Order XXXVII prescribed also procedure and the special procedure must prevail over the general procedure prescribed by Order XXXVII. The whole argument is based on the assumption that the Money-Lenders Act prescribes procedure for obtaining a decree; but obviously it does not No decree can be passed under the Money-Lenders Act as such. The Money-Lenders Act confers upon the debtor the right to have accounts taken in the manner laid down in the Act and no more. In other words, it deals with substantive rights and not procedure and the question of one procedure prevailing over another cannot arise for determination. It cannot be that by reason of the fact that an application has been made under Section 30 by the defendant in a summary suit also gets the right to defend the suit on grounds other than those which arise on taking of accounts, because such grounds are not within the scope of the Bombay Money-Lenders Act and they can have nothing to do with the application under Section 30. We are, therefore, unable to uphold this submission of Mr. Walawalkar; but it is really not necessary to determine it for the purpose of determining this appeal.