AKSHYA PADHAN Vs. RAMKRISHNA PANIGRAHI

JUDGEMENT

(1.) DEFENDANT is the Petitioner. Plaintiff is a registered money -lender with effect from 30 -4 -1952. He brought the suit for recovery of Rs. 796/ - on the basis of a money bond (ex. 1) dated 13 -1 -1952 for Rs. 500/ -, the interest being at twelve percent per annum. Two payments of Rs. 62/8/ - each on 28 -2 -53 and 21 -1 -56 were relied upon. Defendant 's case was that he executed ex. 1 but there was no payment of cash and that it was executed towards previous dues of Rs. 400/ -. The payments were denied and a plea was taken, that the suit was barred under Section 8 of the Orissa Money -Lenders Act as the Plaintiff, who was a money -lender in regular course of business at the time when the loan was advanced, had not registered himself.

(2.) BOTH the courts held that ex. 1 was genuine and for consideration. The trial court dismissed the suit holding that the endorsement of payment (ex. 2) on 21 -1 -56 was not genuine and that the suit was hit by Section 8 of the Act. The lower Appellate court reversed both the findings and decreed the suit. Mr. Misra does not challenge the findings of fact only point urged by him is that the suit is not maintainable under Section 8 of the Act. The lower Appellate court after discussion of the evidence recorded a finding that the Plaintiff was not a money -lender in regular course of business. He discarded the evidence of D.Ws. 1 and 2. The onus undoubtedly is on the Defendant to establish that the Plaintiff was a money -lender in regular course of business at the time when the loan was advanced and that the suit would fail as at that time he had not been registered. On the defence evidence admittedly this onus has not been discharged. The defence evidence falls short of the necessary proof. The defence witnesses speak to all loan transactions subsequent to the suit transaction. Subsequent transactions are not admissible in evidence in proof of the fact that the Plaintiff was a money -lender in regular course of business at the time when the loan was advanced. Defendant relies on the admission of P.W. 2 that the Plaintiff is a money -lender in regular course of business. There is nothing in the evidence of P.W. 1 to support the defence case. The statement in the evidence of P.W. 2 relied upon is as follows:

(3.) IN Civil Revision it is not the jurisdiction of this Court to interfere ordinarily with the findings of fact based purely on the assessment of evidence. Mr. Misra, however, argues that the assessment of evidence by the lower Appellate court is purely based on error of record and is contrary to the admission of P.W. 2. The learned lower Appellate court discusses the evidence of P.W. 2 as follows: