SHA DAMJI DERAJ Vs. MEGRAJ BHIKUMCHAND

JUDGEMENT

(1.) THE respondents filed a summary suit in the City Civil Court on a promissory note of Rs. 12,000. The learned Judge gave the petitioners leave to defend conditionally on their depositing a sum of Rs. 6,000 within a particular time, and the petitioners have come here challenging the order in this revision application.

(2.) THE main contention of Mr. Shah is that the summary suit procedure is not applicable to a suit to which the Bombay Money -lenders Act of 1946 applies, and in this case it is not disputed that the Money -lenders Act does apply to the suit. The respondents are money -lenders and they have obtained a license as money -lenders and they are governed by all the provisions of the Act. Mr. Shah has drawn my attention to certain provisions of the Money -lenders Act. Section 18 casts certain duties upon a money -lender with regard to keeping accounts, furnishing copies, etc., and Section 19 casts certain duties upon a moneylender with regard to delivery of statement of accounts and copies to the debtor. Section 21 provides: Notwithstanding anything contained in any law for the time being in force, in any suit to which this Act applies: (a) a Court shall, before deciding the claim on merits, frame and decide the issue whether the money -lender has complied with the provisions of Sections 18 and 19; (b) if the Court finds that the provisions of Section 18 or Section 19 have not been complied with by the money -lender, it may, if the plaintiff's claim is established in whole or in part, disallow the whole or any portion of the interest found due, as may seem reasonable to it in the circumstances of the case and may disallow costs. Then Section 29 again casts a duty upon the Court and that duty is: Notwithstanding anything contained in any law for the time being in force, the Court shall, in any suit to which this Act applies, whether heard ex parte or otherwise - and then follow various sub -clauses which makes it incumbent upon the Court to reopen any transaction, or any account already taken between the parties; take an account between the parties; reduce the amount charged to the debtor in respect of any excessive interest; and if on taking accounts it is found that the money -lender has received more than what is due to him pass a decree in favour of the debtor in respect of such amount. Section 30 permits a debtor to make an application at any time to the Court for taking accounts and for declaring the amount due to the money -lender. It has been held in Govind Dhondo v. Mannabai : (1954)56BOMLR470 , that the application contemplated by this section is an application in. a pending suit.

(3.) MR . Karanee has strongly relied on a decision of Mr. Justice Tendolkar and Mr. Justice Kotval in Vithan Krishna v. Sogmal Nathumal : AIR1958Bom92 . That was a summary suit. The defendant in that case had obtained conditional leave but had not complied with the conditions. He then made an application under Section 30 of the Money -lenders Act and the learned Judge held that he was not entitled to make that application inasmuch as he had not complied with the conditions for obtaining leave. The Court set aside the order of the learned Judge holding that a substantive right was conferred upon the defendant under Section 30 and that right could not be taken away by the procedure with regard to summary suits laid down in Order XXXVII. Mr. Karanee contends that if notwithstanding the failure to comply with the conditions and notwithstanding the defendant not being in a position to defend the suit, if he could make an application under Section 30 there is nothing to prevent the same procedure being followed under Sections 21 and 29. Now, Section 30 is not in pari materia with Sections 21 and 29. Now, Section 30 enables the defendant to make the application contemplated by that section. He may or may not make that application. But Sections 21 and 29 are mandatory; they have nothing to do with the defendant. It is a duty cast by the Legislature upon the Court itself, and it is impossible for me to envisage how the provisions of Sections 21 and 29 can be worked out if the defendant has not been given leave to defend.