BENCH AT AURANGABAD v. Bhilaji

IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD REPORTED CIVIL REVISION APPLICATION NO.189 OF 2009

2. M/s Mundalik Jewelers, Keli Bazzar, Aurangabad. Mr.Bhagvan s/o Bhaskarrao Mundalik, Age : 50 years, Occu. Business, r/o. M/s Mundalik Jewelers, Keli Bazzar, Aurangabad. ...APPLICANTS VERSUS

1. Bhilaji s/o Ganpat Patil, Age 68 years, Occu. Retired, r/o. "Snehal", 27, Sahakar Nagar, Aurangabad. ...RESPONDENT ... Mr.Swapnil S.Patil, Adv., for the applicants. Mr.S.S.Wagh, Adv., for sole respondent. ... CORAM: K.U.CHANDIWAL, J. DATE:10/12/2010 *** ORAL JUDGMENT :

1. Heard. Civil Revision Application was admitted on 10th Dec.,2009. 3 CIV.R.A.NO. 189/2009

2. The respondent filed Special Civil Suit No.251/2008 for recovery of interest/damages stating that he has advanced sum by cheques to the appellant, with interest at the rate of 18 per cent per annum on the said amount. Respondent has received the principal amount, however, despite repeated demands, the appellant failed to pay interest-cum-damages to the amount due.

3. Appellant raised preliminary objection to the maintainability of suit by an application (Ex.13) under Section 10 of the Bombay Money Lenders Act, 1975. He asserts, hand loan or the transaction, as propogated by the Respondent (plaintiff) being without any license with respondent for money lending, the suit vitiates, and not maintainable.

4. The learned Civil Judge, Senior Division, did not agree to the appellant, rejected the above application Exh.13 and hence the present Revision Application.

5. Mr.Patil, learned Counsel for the petitioner, relied to the judgment of the Apex Court in the matter of 2003(2) Mh.L.J. 529 ( Saleem Bhai and others Vs. State of Maharashtra and others). The Hon'ble Apex Court was dealing 4 CIV.R.A.NO. 189/2009 with the controversies to the effect of Order 7 Rule 11 CPC. In this context, it was observed that the trial Court can exercise power under the said provision at any stage of the suit before registering the plaint or after issuing summons to the defendant at any time before conclusion of the trial. It was also observed, for the purpose of deciding an application under clauses (a) to (d) of Rule 11 of Order 7, the averments in the plaint are germane; pleas taken by the defendant in the written statement are wholly irrelevant at that stage.

6. The above judgment, provides the avenue as it is only the plaint averment which is essential to be looked into. The plaint proceeds with specific case of advance as friendly loan to the appellant with repayment of damages at the rate of 18 per cent. There is nothing either in the plaint or by the application Exh.13 that there were series of the transactions between the parties or by Respondent with anybody to brand that the respondent was a habitual money lender. The Respondent was a Bank employee, he genuinely believed appellant to invest his retiral benefit, with a hope of good return.

7. Mr.Patil, learned Counsel, then took recourse to the judgment of this Court in the matter of Dharmadas Mohitbhai Wani Vs. Shidya 5 CIV.R.A.NO. 189/2009 Jatrya Bhil and others ( 1972 BCI (O) 19). Learned Single Judge dealt with the provisions in sub-section 9 of Section 2 of Money Lenders Act. Learned Single Judge found, as a finding of fact that, the plaintiff in the said proceedings was carrying on the business of money lending and that he was a money lender.

8. In the matter of Ramprasad Bhagirath Agrawal V. Uttamchand Danmal Pande ( 2009 (3) Bom.C.R. 865), dismissal of money decree in favour of the plaintiff by the first appellate Court was questioned in the Second Appeal before this Court. This Court evaluated the evidence and on formulation of substantial question of law found the assessment of evidence illustrated that plaintiff had several monetary transactions and was dealing in money lending. The business activities and litigations projected that suit filed by him was for recovery of loan advanced in the course of money lending transaction. This Court also considered the provisions of Section 10 before it was amended effective 19.7.1975.

9. Thus, the two judgments relied by Mr.Patil convey clear message of regular transactions as a money lender by the said plaintiffs and, consequently, lost the suit against the debtor. 6 CIV.R.A.NO. 189/2009

10. Now, reverting again to the facts in the present case, the plaint averment illustrates the cordial relations between the respondent and the appellant, the respondent advancing money, receiving back, wanting the interest and, hence, the suit. There could not be at any stage, any evidence, from the appellant to illustrate that the respondent is a chronic money lender.

11. The second limb of submission of Mr.Patil was, whether a suit simplicitor for interest, as damages, is maintainable and, he says, it being attracting provisions of Section 2(g) of Money Lenders Act, will be covering the impact and impasse of loan. I do not agree to this position as, under the statutory arrangement under Negotiable Instruments Act, under Interest Act, the respondent is entitled to claim interest. The transaction is not perpetuated by any promissory note, stipulating any interest. The claim as for interest, as damages, is not deleterious, or destructive to any law.

12. The Hon'ble Supreme Court in the matter of Gajanan and others Vs. Seth Brandaban ( AIR 1970 SUPREME COURT 2007), has clarified legal position that stray transactions would not attract the provisions of Money Lenders Act. That apart, the plea that has been raised in Exh. 13 would also be revolving to the disputed 7 CIV.R.A.NO. 189/2009 questions of facts and also law. The isolated transaction of advance by cheque would have to be treated, to be not a regular business of money lending. It would not be treated to be opposed to public policy and void. The scheme of the Act provides an umbrella to the Respondent as he was not a regular un-licensed money lender.

13. The diminutive scope of interference in Revision also needs consideration. The findings recorded by the learned Judge, while rejecting Exh.13, do not project illegality or couched with material irregularities. The Hon'ble Lordships of the Apex Court have indicated this position in (1972) 3 SCC 195 ( Hindustan Aeronautics Ltd Vs. Ajit Prasad Tarway). This is also to be seen in Abdul Rehman Shora Vs. State of Jammu and Kashmir ( (2009) 2 SCC 617), Ram Kumar Vs. State of Rajasthan ( (2008) 10 SCC 73), Shaik Jaffar Vs.Mohd.Pasha ( AIR 1975 SC 794).

14. The order does not call for any interference. Civil Revision application is dismissed. The observations are restricted to the Revision application. agp/189-09cra (K.U.CHANDIWAL) JUDGE