RAMACHANDRA SAHU Vs. BHAGABAN SAHU

JUDGEMENT

(1.) THIS is an appeal from the judgment of the Additional Subordinate Judge of Berhampur dismissing the Plaintiff's suit for recovery of a sum of Rs. 5440/ - with interest and costs from the Defendant. The Defendant executed a promissory note in favour of the Plaintiff on 29 -9 -1953 (Ext. A) and received Rs. 1000/ - in cash and Rs. 3000/ - by cheque promising to pay back the money with interest on demand. The Defendant, while admitting the execution of the promissory note and the receipt of money stated that he did not execute it in his personal capacity but as the Managing Director of a firm known as the Sugar Distillery and Timber Mills Limited. Hence he urged that the firm alone was liable for the repayment of the loan. This plea was negatived by the lower court who held on a construction of letters Exts. 1, 2 and 3 that the Defendant was personally liable to pay the money. But he dismissed the suit mainly on the ground that on the date on which the loan was advanced the Plaintiff was not a registered money -lender and that consequently Section 8 of the Orissa One -lenders Act operated as a complete bar to the recovery of the loan. This is the sole point for consideration in this appeal.

(2.) IT is admitted that on the date of the loan, namely 29 -9 -1953, the Plaintiff's father Raghunath Sahu was alive and that he was the kartha of the joint family consisting of himself and his son the Plaintiff. Raghunath Sahu died only three days later, on 2 -10 -1953 and thereafter the Plaintiff became the kartha of the joint family. The Plaintiff also stated on oath that the money for the loan advanced came from the joint family property. The Plaintiff's father was a registered money -lender holding Registration Certificate No. 30 dated 8 -4 -1951 the maximum capital being Rs. 15000/ -. It is also admitted that after Raghunath Sahu's death, his son (Plaintiff) took a Certificate of Registration on 2 -1 -1954 for a maximum capital of Rs. 15000/ -. Thus the admitted position is that on the date of advance of the loan, namely 29 -9 -1953 the Plaintiff' was himself not a registered money -lender. Mr. Sinha for the Respondent therefore contended that Section 80 of the Orissa Money -lenders Act must operate as a complete bar to the filing of the present stilt. It is true that that section says that a money -lender shall not be entitled to institute a suit for recovery of a loan advanced by him..unless he is a registered under the Act at the time when such loan is advanced. If the expression 'money -lender' is construed in the present case as referring only to the Plaintiff in his personal capacity it is obvious that this section must operate as a complete bar. But Mr. Rao for the Appellant contended that the expression 'money -lender' in Section 8 includes only a person in whose name the loan was advanced but also a Hindu. Undivided family if in fact the loan was advanced by the family. He relied very much on the definition of the expression 'money -lender' in Section 2(j) of the Act which expressly says that the expression includes not only a person who advances a loan but also a Hindu Undivided Family. Mr. Rao therefore contended that on the facts as proved by he Plaintiff and not challenged by the Defendant it must be held that the loan was really advanced by the joint family consisting of the Plaintiff's father and himself, though the promissory note was taken in the name of an undivided coparcener who was not kartha at that time. He also urged that the Registration Certificate in the name of the Plaintiff's father must be construed to be the certificate of the Hindu joint family though he might not have expressly said so in his application for registration. Hence, according to Mr. Rao the loan having been advanced by the Hindu joint family and he registration certificate having been obtained in the name of the kartha of the family, Section 8 will not operate as a bar on the facts proved in this case.

(3.) I am inclined to accept Mr. Rao's contention. The peculiar position of a Hindu joint family was well known to the Legislature and hence while defining the expression 'money -lender' in Section 2(j) the legislature took special care to include a Hindu undivided family within the scope of the definition, even though one individual alone might have advanced a loan. Hence in Section 8 of the Act we must, as a matter of construction, substitute the words "Hindu Undivided Family" wherever the word "money -lender" occurs and make consequential grammatically alterations ,to the other expressions used in that section. If such a substitution is made Section 8 of the Act would for the purpose of this case read as follows: A Hindu undivided family shall not be entitled to institute a suit for the recovery of a loan advanced by the family...unless the family was registered under this Act at the time when such loan was advanced.