BHAGABAN MISRA Vs. ANTARYAMI NANDA AND ORS.

JUDGEMENT

(1.) DEFENDANT No. 1 took a loan of Rs. 500.00 from Defendants No. 2 and 3 on 1 -2 -1957 by executing the suit hand -note (ext. 1). Defendants No. 2 and 3 transferred the suit hand -note for Rs. 671.87 p. on 18 -12 -1959 by a sale deed (ext. 2) in favour of the Plaintiff. Defendant No. 1 contested the suit denying to have taken any loan from Defendants No. 2 and 3. Defendant No. 2 is the son of Defendant No. 1 who is the paternal aunt of the Plaintiff and the maternal aunt of the Defendant No. 1. Though the execution of the suit hand -note was admitted, passing of consideration thereunder was denied. A defence was also taken that the Plaintiff and Defendants No. 2 and 3 were money lenders in regular course of business and the suit was not maintainable as they were not registered and that they have not complied with the provisions of Rule 11 of the Orissa, Money -Lenders Rules. Originally the trial court had decreed the suit for Rs. 665.00. In appeal the case was remanded for returning a finding on an issue to the effect "Whether the Plaintiff has complied with the Rules 11 and 12 framed under the Orissa Money -Lenders Act - The trial court after remand returned a finding that the Plaintiff had duly complied with the provisions of Rule 12 of the Orissa Money Lenders Act and that he was not a money lender in regular course of business. Before the lower appellate court, the findings on other issues were not challenged. In other words, the Defendant No. 1 did not challenge the findings that consideration has passed under the suit pronote. The only question that was canvassed before the lower appellate court was that the Plaintiff and Defendants No. 2 and 3 were money lenders in regular course of business and should have been registered under the Orissa Money -Lenders Act and that as they had not been registered, they could not comply with the provisions of Rule 11 of the Orissa Money -Lenders Act and that as such the suit was liable to be dismissed as being not maintainable. The learned lower appellate court upheld the contention that the Plaintiff and Defendant Nos. 2 and 3 were money lenders in regular course of business and accordingly dismissed the suit due to noncompliance of Rule 11 of the Orissa Money -Lenders Rules. Against that judgment the Civil Revision has been filed.

(2.) MR . Misra contends that the learned lower appellate court exercised his jurisdiction with material irregularity in arriving at the aforesaid conclusion. He supplied a chart of the various loans that were advanced by the Defendants No. 2 and 3 and the loans advanced by the Plaintiff. A copy of this chart was supplied to Mr. G.R. Rao who did not dispute its correctness. The judgment would therefore proceed on the basis of the admitted data so supplied.

(3.) WOULD the answer be in any way different if the promissory note is assigned in favour of a person who was a money lender in regular course of business on the date of the suit transaction?