LAKHI NARAYAN SAO Vs. BHAGWATI KUER

JUDGEMENT

(1.) This appeal by the plaintiff is directed against the judgment and decree of the Subordinate Judge of Bihar sharit, reversing' the judgment and decree of the Additional Munsif and dismissing the plaintiff's suit for arrears of house rent on the basis of a registered kerayanama. It is admitted that the defendants borrowed a sum of Rs. 2,500/- from the plaintiff, who was not registered as a money-lender under the Bihar Money-Lenders Act, 1938 (hereinafter referred to as 'the 1938 Act'), and executed a mortgage by conditional sale (bai-wul-wafa) on the 5th February, 1953 in respect or a house. On the same date, there was a lease back in the form of the Kerayanama under which the defendants agreea to pay to the plaintiff Rs. 25/- per month as rent of the house. As no rent was paid, the plaintiff-appellant instituted this suit. The defendant-respondents resisted the claim of the plaintiff-appellant on three grounds (1) the suit, being, in essence, a suit for realisation of interest, could not be maintained independently of the claim for the mortgage money; (2) legally, the plaintiff was entitled to get interest at 9 per cent per annum on the mortgage money, but under the kerayanama he was to get interest at 12 per cent per annum as, rent and (3) inasmuch as there was relationship of creditor and debtor and the plaintiff was not registered as a money-lender under the 1938 Act, the suit was hit by Section 4 of the Bihar Money-Lenders (Regulation of Transactions) Act, 1939 (hereinafter referred ,to as 'the 1939 Act.').

(2.) It was conceded before the learned Munsif that mere was relationship of creditor and debtor between the parties, and, therefore, in view of a decision of this Court in, Ramnarain Passi v. Sukhi Tiwary, AIR 1957 Pat 24, the Teamed Munsif granted a decree for damages for use ana occupation at the rate of 9 per cent per annum on the amount advanced under the mortgage bond, instead of the amount claimed as rent, which worked out at 12 per cent per annum on that amount.

(3.) On appeal by the defendants, the learned subordinate Judge agreed with the learned Munsif that the plaintiff could maintain the suit to recover interest at 9 per cent per, annum on the amount advanced; but he dismissed the suit on the ground that it was hit by Section 4 of the 1939 Act, inasmuch as the plaintiff did not plead that he was not a professional money-lender.