SAMARA MUNDA Vs. KARTIK SAHU

JUDGEMENT

(1.) THIS is a Defendant 's application under Section 115 of the Code of Civil Procedure against the appellate order of the Plaintiff 's suit. The Plaintiff filed a suit for recovery of two sums of Rs. 99/ - each on the basis of two bonds dated 21 -6 -1954 and 31 -12 -1954. The Defendant admitted to have borrowed the money from the Plaintiff, but his case was that the amounts borrowed were fully paid up with interest in both the cases. His further case was that whenever he was making such payments, the Plaintiff used to say that the bonds were not available for endorsement. On the last occasion the Defendant obtained a receipt from the Plaintiff when he paid Rs. 20/ - towards full satisfaction of his dues. He also took the plea that the Plaintiff was a money -lender in the regular course of business and since he is not a registered moneylender the suit is not maintainable. The trial court negatived the defence plea of payment except the sum of Rat 20/ - as evidenced by ext. A and dismissed the Plaintiff 's suit on the ground that the Plaintiff was a money -lender in the regular course of business, and as such, was hit by Section 8 of the Orissa Money -Lenders Act (Act III of 1939). The appellate court on a consideration of the evidence and relying upon certain decisions of the Patna and Allahabad High Court came to the conclusion that the Plaintiff was not a money -lender - in the regular course of business. The further question of maintainability argued before him was that the Plaintiff had not complied with the provision under rule 12 of the Orissa Money Lenders Rules. The learned District Judge negatived this contention relying on the difference of views taken by Rao, J. in two different cases.

(2.) IT was argued on behalf of the Petitioner that the learned district judge had misconceived the law on the point. In view of the finding of fact, he should have come to the conclusion that the Plaintiff was a money -lender in .the regular course of business. The facts that stand out are that the Plaintiff had advanced loans in ten cases between the years 1953 -1955. It is fairly clear from the evidence of DWs, 2 to 8 that the Plaintiff advanced two loans in 1953, five loans including the two suit -loans in 1954 and one loan in 1955. The further finding was that the amount of these loans varied from Rs. 40/ - to Rs. 100/ - in each case. The cases to which the learned district judge had referred are cases which are clearly distinguishable on their own facts. In the Allahabad case, for instance, there were only three instances of loans advanced in course of a bout thirty years. So also in the Patna case, there were a few instances of loans covered over a long period. All these decisions had been discussed by this Court and this Court was of opinion that each case must be decided on its own facts whether the Plaintiff is or is not a money -lender in the regular course of business, within the meaning of Section 2(j) of the Orissa Money Lenders Act. If the facts in this case are taken into consideration, the Plaintiff having advanced the loans between the years 1953 -55 in ten instances, it cannot be said that it was merely due to friendly accommodation that be had been advancing these loans on interest. The learned district judge is clearly in the wrong when he came to the conclusion that the Plaintiff was not a money lender in the regular course of business. I have no doubt in my mind having regard to the facts of the case that the Plaintiff comes within the mischief of Section (2)(j) of the Orissa Money Lenders Act, and is thus hit by Section 8 of the Act he not having registered himself as a money -lender.

(3.) IN the result, I would set aside the order of the learned district judge and restore that of the learned munsif, and make the rule absolute.