DIBAKAR SAMANTRAI Vs. UPENDRA PANDA

JUDGEMENT

(1.) THE Plaintiff -Petitioner's case is that he advanced a loan of Rs. 80/ - to the Defendant under a hand note on 9 -11 -1956, he Defendant denied the execution of the hand note and incurrence of the loan. The trial court accepted the truth of the Plaintiff's case on those counts, but dismissed the suit on the ground that the Plaintiff had no registration certificate for money -lending by the date of the loan it may be noted that the Plaintiff had a registration certificate (Ext. 2) which operated from 3 -8 -1951 to 3 -8 -1956. Then the Plaintiff obtained a fresh certificate (Ext. 2a) for five years being operative from 4 -4 -1957. The present loan was advanced in between the expiry of Ext. 2 and commencement of Ext. 2a. Since the suit has been tried by a Small Cause Court, the Plaintiff hag come up in revision.

(2.) THE Petitioner's grievance is that there is no clear finding of fact by the trial court that the Petitioner was a money lender in the regular course of business by the time he advanced the loan in suit, so as ,to be hit by Section 8 of the Money -Lenders Act. Though the Petitioner had a registration certificate from 1951 to 1956, since such a certificate under Section 5 of the Money -Lenders Act is to be procured by a person, who either lends money or who intends to lend money in the regular course of business, the learned Counsel for the Petitioner contends that after procuring Ext. 2 his client might have carried no money -lending business in the regular course until Ext. 2a was later on procured Ext. 2 his client might have carried no money -lending business in the regular course until Ext. 2a was later on procured, and there was not thing in the record to fix his client as a regular money -lender by the date of the loan. As it appears, this aspect of the case was not presented in the trial court, and it was assumed there on the basis of the plea taken by the Plaintiff that he was a money -lender in the regular course throughout the period. One of such indications was given by him, when in the plaint he filed the particulars which are required of a regular moneylender under Rule 11 of the Money -Lenders Rules. In the written statement, the Defendant had specifically asserted that the suit was hit by Section 8 of the Money Lenders Act since the Plaintiff -Petitioner had no registration certificate by the time of the loan; in other word the Defendant's clear case was that the Plaintiff was a regular money -lender by the time of the advancement of the suit loan. Without controverting that position, in his evidence the Plaintiff wanted to say that be had a registration certificate from 1951 to 1956, and that he got it renewed in 1957. He never stated in his evidence that he was only an occasional money -lender by the time of the suit loan, and that though he had got an earlier registration certificate for the period from 1951 to 1956, he had carried no money lending business during that period, and that his regular money -lending business really commenced in 1957 after the suit loan was advanced. The stand that the Plaintiff took in the trial court was implied admission that he was a regular money -lender throughout from 1951 to 1957, and his case was rather that he had always registration certificates. In the circumstances, the trial Court was not called upon to decide specifically if the Plaintiff was a money -lender in the regular course of business.