BALAKRUSHNA JENA Vs. HARIHAR JENA AND ANR.

JUDGEMENT

(1.) DEFENDANT No. 1 is the Appellant in this second appeal from a reversing decision of the learned District Judge, Puri, whereby he set aside a decision of the learned Subordinate Judge, Puri and decreed the Plaintiff's suit for recovery of Rs. 990/ - which the Plaintiff had lent and advanced to the Defendant on a stamped receipt executed by the Defendant in favour of the Plaintiff on March 19, 1952. The defence to the suit is that there was no consideration for the receipt executed by the Defendant; that Defendant No. 1 and the Plaintiff were partners in a fish business and the said receipt was given as security in connection with a criminal case filed by the Plaintiff against the fishermen. It is also contended by the Defendant that the suit is hit by Section 8 of the Orissa Money lenders Act.

(2.) THE trial court held that there was no consideration for the receipt although the execution of the receipt ig admitted; that there was a partnership between Defendant No. 1 and the Plaintiff, and the defence story of the circumstances in which the receipt was given was believed by the trial court. The trial court also held that the Plaintiff carried on money -lending business in excess of the license amount and therefore the suit is hit by Section 8 of the Orissa Money -lenders Act and accordingly the Plaintiff's suit was dismissed. In appeal, the learned lower appellate court reversed the decision of the trial court and found that there was consideration for the loan and disbelieved the defence story of the receipt having been given as security as alleged, and accordingly decreed the suit in favour of the Plaintiff for Rs. 990/ - with proportionate costs. The learned lower appellate court however did not consider the question of maintainability of the suit under the Orissa Money -lenders Act. The present appeal has been filed by the Defendant against the decision of the learned lower appellate court decreeing the suit in favour of the Plaintiff as aforesaid. The main point urged on behalf of the Defendant Appellant herein is that the Plaintiff' suit is hit by Section 8 of the Orissa Money -lenders Act. The factual position in this context is this: The Plaintiff had taken a license for money lending business for a sum of Rs. 1,000/ - on January 5, 1952. The suit loan of Rs. 990/ - was taken by the Defendants from the Plaintiff on March 19, 1952 and in fact the Money -lending Book (Ext. 1) shows that the first loan was the said sum of Rs. 990/ - advanced by the Plaintiff to the Defendant on March 19, 1952. It appears from the Money -lending Book that the Plaintiff subsequently advanced another loan of Rs. 400/ - to some other person on March "24, 1952, that is to say, by that date it had exceeded the limit of the license which was for Rs. 1,000/ -. The present suit was filed by the Plaintiff on April 14, 1955. Thereafter, on June 27, 1957 the Plaintiff took a second license for a sum of Rs. 5,000/ -. The Defendant's point is that the Plaintiff had exceeded the license limit of Rs. 1,000/ - and accordingly the suit is hit by Section 8 of the Orissa Money -lenders Act. For convenience of reference, Section 8, so far as is material provides as follows:

(3.) THIS position in law is wholly covered and is made absolutely clear by two recent Division Bench decisions of this Court in Bholanath Gar/pat Ray Firm v. Gopinath Agrawalla and Ors., I.L.R. 1991 Cutt 21 and Kontaru Naik and Anr. v. Madhusudan Mallana and Anr., I.L.R. 1962 Cutt 445. It was decided that the relevant date for the purpose of considering whether the money -lender was duly registered under the Act is the date on which the loan was advanced. Rule 3 of the Orissa Money -lenders Rules requires the money -lender to specify the maximum capital for which registration certificate is asked for, and it necessarily follows that the registration certificate issued to him is valid only if the "highest total amount of the capital sum which may remain invested in a money -lending business on a day during the period of registration certificate does not exceed that sum".