FULCHAND CHAMPALAL JAIN Vs. PUNJARU SHANKAR PATIL

JUDGEMENT

(1.) The facts of this case are very simple. The appellant/plaintiff advanced a sum of Rs. 9000/- to the father of the defendants Shankar Nandaram Patil way back in the year 1974. There was no dispute either in the lower Court or in this Court that the sum was advanced without any interest. But a document styled as a hand-note was executed by said Shankar Nandaram Patil in favour of the plaintiff. Once again, there is not dispute that the document does not mention any term for payment of interest. The amount was advanced on 31st May, 1974 whereas Shankar Nadaram Patil died on 17-11-1974. The plaintiff gave notice to his son, present defendant No. 1 calling upon him to pay the amount. The notice drew blank. It may be mentioned here that no demand for payment of interest was made even in the notice. What was demanded was the amount of Rs. 9000/- taken by Shankar Nandaram Patil from the plaintiff. The instant suit was filed by the plaintiff on 6th June, 1977 for recovery of the said amount of Rs. 9000/- with further interest.

(2.) The defendants filed the Written Statement and denied their liability. Their 1st contention was in the nature of a blank denial as regards the advance of any amount by the plaintiff to Shankar Nandaram Patil. Their 2nd contention was that the plaintiff was a money-lender and had been doing the said business of money lending since 1974 and that, hence, the transaction was hit by the provisions of the Bombay Money-Lenders Act.

(3.) On these pleadings, issue were framed and the parties went to trial. The 1st question required to be decided by the learned Judge was as to whether the transaction was in the nature of loan within the contemplation of section 2(9) of the Bombay Money-Lenders Act. The learned Judge held that the document, Exhibit 31, dated 13-5-1974 was a pro-note although it was described by the plaintiff as a hand-note. He further relied upon the judgment of this Court reported in (Dharamdas Motibhai Wani v. Shidya Jatrya Bhil) 73 Bom.L.R. Page 458 and held that since this was a pro-note although interest was not shown as payable in the document itself, still it became payable by virtue of the provision of section 80 of the Negotiable Instruments Act. According to the learned Judge, therefore, the transaction was in the nature of a "loan" within the contemplation of the Bombay Money Lenders Act. However, he also held that the plaintiff was not a money-lender. The evidence led by the defendant in that behalf was examined by him and he found that just because the three transactions of loan advanced by the plaintiff to others including the suit transaction, were proved, that fact did not make the plaintiff a money-lender as such within the meaning of the Bombay Money-Lenders Act. So far as the merits were concerned, the learned Judge was satisfied by virtue of the evidence on record that the father of defendant No. 1 had taken the said amount of Rs. 9000/- from the plaintiff on 13-5-1974 as evidenced by the document, Exhibit 31. The learned Judge, therefore, decreed the plaintiffs suit with costs.