SULTAN SINGH Vs. FIRM MUNA LAL ONKAR MAL

JUDGEMENT

(1.) The plaintiff-respondent claiming itself to be a firm duly registered under the Indian Partnership Act alleged that it had dealings with the defendant-appellant and that on 29.12.1969 the previous accounts were settled and a bahi entry in the sum of Rs. 925/- was executed in the bahi and that the interest was agreed upon between the parties at the rate of 1% per mensem. It was further alleged that on 20.7.1970 the defendant paid a sum of Rs. 100/- which amount was adjusted. Since, however the defendant did not pay the balance amount despite persistent requests, it filed the instant suit for recovery of Rs. 1128/-, the principal amount being Rs. 825/- and interest Rs. 303/-. The suit was resisted by the defendant who denied execution of the bahi entry or its consideration. Another plea taken by him was that the plaintiff-firm is a money-lender and since it did not obtain a money-lending licence, it should be non-suited. The allegation that the firm was duly registered and Shri Onkar Mall was its duly registered partner, was also denied. It was further pleaded that about 8 years earlier, the defendant took Rs. 700/- from Muna Mal father of Onkar Mall, partner of the plaintiff-firm by pawning one gold chain and one mala and at that time his thumb impression was obtained in the bahi. On the pleadings of the parties, the learned Sub-Judge Ist Class, Rewari framed issues and after receiving evidence dismissed the plaintiff's suit vide judgment and decree dated 17.1.1975. The plaintiff thereon filed an appeal, which was partly allowed by the learned Addl. District Judge, Narnaul vide judgment and decree dated 2.8.1977. Plaintiff's suit for recovery of Rs. 825/- with proportionate costs throughout was thus decreed. It was held that it was not entitled to any interest. The defendant thus being aggrieved filed the present regular second appeal in this Court.

(2.) The learned counsel for the appellant did not question the concurrent finding of fact recorded by the Courts below the effect that the bahi entry in the amount of Rs. 925/- dated 29.12.1969 had been duly executed by the appellant for consideration; that the respondent-firm was duly registered and Onkar Mall was one of its registered partners. He questioned the finding of the learned Addl. District Judge that the respondent was not proved to be a money-lender. He invited my attention to the statement of Onkar Mall, PW.4, who refused to produce the books of accounts of his firm in Court and stated that whatever presumption could be drawn against the respondent for non- production of the books of accounts may be so drawn. He contends that it could be only by reference to the books of accounts that the appellant could establish that the respondent is a money lender and without service of notice under the Punjab Regulation of Accounts Act, 1930 the instant suit by it was not maintainable particularly when it did not possess a money-lending licence. Besides relying on Gopal Krishanji v. Mohammed Latif, 1968 AIR(SC) 1413 to contend that the onus of proof is immaterial and the party which has the best evidence in its possession is duty bound to produce the same in Court failing which adverse inference can be drawn against it, he also relied on Bahadur Thakur v. Bata Sahu, 1958 AIR(Ori) 85 wherein it is held that where a money-lender's suit suffers from non-compliance with sections 11 and 12 of the Orissa Money Lenders Act and the money-lender fails to produce his account books in Court, the non-production of the accounts under the circumstances of the case is a serious mistake on the part of the plaintiff and the trial Court is entitled to draw the presumption that if produced the accounts would be against the plaintiff's case.

(3.) As regards the reliance of the learned counsel on Gopal Krishanji's case all that needs be stated is that the onus of the issue ''whether the plaintiff is a money-lender, if so, its effect?'' was on the appellant. He could not compel the respondent to produce its books of accounts so as to allow him to make a fishing enquiry to find out material for discharging the onus of this issue. As has been rightly observed by the learned Addl. District Judge, he could not name even a single person to whom the respondent had advanced loan. His bare statement that the respondent it a money lender was not sufficient to shift the onus on its shoulders. At least some semblance of evidence by naming a few persons to whom the respondent had advanced loans was a pre-requisite to compel it to produce its books of accounts so as to negative the assertion that the persons so named had taken loans from it. In my view, the ratio of Gopal Kishnaji's case has no application to the facts of the instant case. Now adverting to Bahadur Thakur's case all that it requires to be noted is that it was admitted therein that the plaintiff was a money-lender. He gave his registration number in the plaint. Rules 11 and 12 of the Orissa Money Lenders Act require that the plaintiff shall at the time of filing the plaint state in the plaint the particulars of his registration certificate, the amount of his capital and certain other particulars and also file along with the plaint a copy of the extract of the suit debt. The plaintiff therein was also required to maintain regular books of accounts and his failure to produce the books of accounts when called upon was no doubt fatal to his case. The Punjab Regulation of Accounts Act, 1930 also provides for regular maintenance of the books of accounts. It, however, defines ''creditor'' under section 2(5) to mean a person who is in the regular course of business advances a loan. ''Loan'' is defined in sub-section (7) of section 2 to mean an advance whether of money or in kind at interest and includes any transaction which the Court finds to be in substance a loan. In the absence of any evidence that the plaintiff is in the regular course of business advancing loans within the meaning of this Act, no burden could be placed on it to maintain or produce its books of accounts. Bahadur Thakur's case is, therefore, clearly distinguishable.