MOHD RAFIQUE Vs. FIRM MANGAL CHAND JAWAHARMAL

JUDGEMENT

(1.) THE judgment debtor has preferred this appeal against the order dated 19th August, 1975, passed by the learned District Judge, Tonk, in objection petition No. 32 of 1974, in execution case No. 8/1973.

(2.) THERE was a litigation between the judgment debtor and the decree holder. Compromise decree was passed. It was agreed upon that the decree holder will get interest from the judgment debtor at the rate of 1. 50 percent per month from the date of the decree till the date of realisation.

(3.) I have heard the rival contention of both the parties. Money Lenders Act, 1963, is prospective and not retrospective in its operation. This court in the case of Nanoo Ram Vs. Vishwamitra (1), has dealt with the provisions of S. 29 clause 2 and 3 of the Act, held in para 12 of the judgment as under:- "then again, there is another hurdle in the petitioner's way. The transaction in question admittedly took place before the Rajasthan Money Lenders Act, came into force, and serious question arises whether S. 29 would have application also to lose transactions which had been entered into prior to the coming into force of the Act. In this connection, I draw attention to Sec. 2 Sub-Section (15) of the Act, which provides the meaning of the phrase 'suit to which this Act, applies'. It may be useful to reproduce item No. 15 of S. 2:- " (15) 'suit to which this Act, applies means any suit or proceedings:- (a) for the recovery of a loan made after the date on which this Act, comes into force". Thus, the definition of the phrase 'suit to which this Act, applies' makes it clear beyond all doubt that S. 29 (3) cannot apply to this case, as the transaction was made before the date on which this Act, came into force. Learned counsel for the petitioner, however, relied on sub-sec. (2) of S. 29 and argued that according to the sub-section, no money lender shall charge or receive from a debtor interest at rate exceeding the maximum rate fixed by the State Government under sub-sec. (1) and submits that even though the court may not be able to give relief to the defendant in respect of transactions entered into before the coming into force of the Act, there is a statutory bar prohibiting a money lender from realizing interest at rate exceeding the maximum rate. 1 am afraid, this submission is devoid of force and the only reasonable interpretation that can be put on sub-sec. (2) also is that no money lender shall charge or receive interest more than that fixed by the State Govt. only in respect of transaction which have been entered into after the date of the coming into force of this Act, It is a fundamental rule of interpretation of statutes that no statute shall be construed to have retrospective operation unless such a construction appears very clearly in the terms of the Act, or arises by necessary and distinct implication. A statute is not to be construed to have a greater retrospective operation then its language renders necessary. There is nothing in S. 29 of the Act, to show that the legislature intended that the maximum rate fixed by the State Government u/s (1) of S. 29 shall also apply to those transactions which had been entered into prior to the coming pertinent to refer to S. 25 of the Bombay Money Lenders (Amendment) Act, III of 1951, which provides as follows:- " (1) The State Government may from time to time by notification in the Official Gazatte fix the maximum rates of interest for any local area or class of business of money lending in respect of secured and unsecured loans. sub-sec. (1) shall be valid and no court shall in any suit to which this Act, applies award interest exceeding in the said rates. (2) Notwithstanding anything contained in any law for the time being in force, no agreement between a money lender and a debtor for payment of interest exceeding the maximum rates fixed by the State Government. (3) If any money lender charges or receives from a debtor interest at a rate exceeding the maximum rate fixed by the State Government under sub-sec. (1), he shall for the purpose of S. 34 be deemded to have contravened the provisions of this Act. " While interpreting the provisions of S. 25 of the aforesaid Bombay Money Lenders (Amendment) Act, it was held by the learned Judge, that S. 25 (2) has not been made retrospective and does not apply to transactions entered into before the Act, came into force. Insertion of sub-sec. (2) in S. 29 in the Rajasthan Act, would in my opinion, make no difference and the same meaning has to be given to sub. S. (2) also otherwise there would be clear discrepancy between sub. S. (2) also and sub-sec. (3) I, therefore, held that S. 29 of the Rajasthan Money Lenders Act, has not been made retrospective and does not apply to transactions entered into before the Act, came into force. It was not intended by the legislature that the rate of interest agreed upon in such a transaction should not be awarded merely because it was in excess of the rates fixed under S. 29, sub-sec. (i ). Thus, there is no force in the contention of the learned counsel for the petitioner. " I agreed with the view taken by this court in the case of Nanuram Vs. Vishwami-tra (Supra) by the then Hon'ble Chief-Justice C. M. Lodha. Mr. Tikku, learned counsel for the appellant does not oppose the proposition of law laid-down by this court but he has taken a different stand in alternative. He submits that on 23rd August, 1969, the compromise was entered into between the parties and it was submitted before the court in pursuance of the compromise dated 23rd August, 1969, the compromise decree was passed on 8th September, 3969. He submits that the compromise decree is an agreement and it should be treated as an agreement for all purposes particularly, in the matter of application of Ss. 27 and 29 of the Act, 1963. No doubt, the compromise decree is passed on the loss of mutual agreement entered into between the parties, the agreement is given the shape of a decree by the order of the court and it merges in the order of the court and the shape of the decree of the court. It is the duty of the court to see that a decree is not passed in violation of the provisions of the law and failure of the court, may sometimes lead to the position that the compromise decree is a nulity. In the instant case, the whole case of the party is based on the facts firstly, whether the judgment debtor can get any relief under the provisions of the Act, or not. If he is a trader then he cannot get the advantage of the provisions of the Money Lenders Act. The second question which also needs the decision of the court is about the dealings of the parties including the payments made from time to time. In such circumstances, if the question involved in based purely on the disputed questions of fact then the decree particularly, compromise decree if, so facts does not become a nulity and the law does not provide for giving an opportunity by further evidence to prove that there was a possibility of succeeding on the ground of money leading licence which has been waived by the judgment debtor. The decree it should be presumed for all purposes that the judgment debtor who was the defendant accepted the position that the judgment debtor cannot get the benefit of the Money Lenders Act. For these reasons, I do not find any force in the submissions made by the learned counsel for the appellant on this point. Section 2, clause (16) of the Money Lenders Act, reads as under:- Section 2 Clause 16:- 'trader' means a person who in the regular course of business buys and sells goods or other property, whether movable or immovable, & includes :- (a) a whole-sale or retail merchant; (b) a commission agent; (c) a broker; (d) a manufacturer; (e) a contractor; and (f) a factory owner;