JUDGMENT : Misra, J. - The suit is for recovery of Rs. 1970/ - Plaintiff is a registered money-lender. His case is that on 8-1-1945 Defendant No. 1, father of Defendants 2 to 4- borrowed from him Rs. 1500/ - as the Karta of the joint family of the Defendants for financing Gur (molasses) business of the family stipulating to pay interest at 12 percent per annum and, in evidence of the loan, executed the suit promissory note (ext. 1) which was scribed by Defendant no 2. In all, Rs. 1030/ - was paid towards interest in different instalments on 20-9-1917, 2-8-1950, 18-6-1953 and 15-5-1956. As the balance was not paid, the suit was filed on 21-6-1957. The defence plea is that the Plaintiff and Defendant No. 1 had a joint business of molasses of which Plaintiff was the financing partner. Both of them were to bear the profit and loss in equal proportions. Plaintiff advanced a sum of Rs. 500/ - on 16-10-1943 and Rs. 1001/ - on 19-10-1943, In 1444 he received a Bum of Rs. 213/5/ - from Defendant No. 1 towards profit. In subsequent years there was loss. Plaintiff did not take interest in the business the suit promissory note towards advances made by the Plaintiff in connection with the joint business and no consideration was paid in cash under ext. 1. Besides the payment of Rs. 1030/ -, Defendant No. 2 made a further payment of Rs. 500/ - on 26-8-1956 which was not adjusted towards the loan. It was averred that the suit is barred by limitation and hit by Rule 11(iii) of the Orissa Money-Lenders Rules, 1939 (hereinafter referred to as the Rules) as the plaint did not contain a copy of the account referred to in Clause (a) of Section 7 of the Orissa Money-Lenders Act, 1939 (hereinafter referred to as the Act). 2. The Courts below concurrently rejected all the essential defence pleas. Plaintiff's suit was, however, dismissed by the trial Court for non-compliance with Rule 11(iii). The lower appellate Court decreed the suit taking the contrary view. 3. The only point canvassed in second appeal is whether the suit is liable to be dismissed for non-compliance with Rule 11(iii). 2. The Courts below concurrently rejected all the essential defence pleas. Plaintiff's suit was, however, dismissed by the trial Court for non-compliance with Rule 11(iii). The lower appellate Court decreed the suit taking the contrary view. 3. The only point canvassed in second appeal is whether the suit is liable to be dismissed for non-compliance with Rule 11(iii). This Rule runs thus Every plaint in a suit by a money-lender as defined in Sub-clause (1) of Clause (j) of Section 2 shall, in addition to any other particulars that may be required by any law, contain the following particulars: (i) date and number of his registration certificate, (ii) maximum capital in respect of which he holds certificate; and (iii) a copy of the account referred to in Clause (a) of Section 7 of the Act relevant to the case. 4. It is not disputed that the plaint did not contain the particulars relating to Rule 11(iii). This is admitted in part 10 of the plaint itself thus- That the Plaintiff has not maintained any account of the transaction in suit as provided by the rules prescribed under the Money-Lenders' Act, the transaction being one of the year 1948. In para 5 of the written statement a specific objection was taken to the effect That the suit is liable to be dismissed for non-compliance of the provisions of Orissa Money Lenders Act and the Rules 11 and 12 framed thereunder. At one time there was conflict of authorities in this Court as to whether Rule 11 was mandatory or not. The controversy was settled in Anirudha v. Dhanu ILR 1961 Cutt 430. Despite this pronouncement, the confusion of thoughts still prevails. Arguments are being entertained in one shape or other that the Rule is not mandatory and the suit is not liable to be dismissed unless prejudice is caused. Mr. Swain advanced the very line of reasoning. It is, therefore, desirable to clearly state the law. 5. The confusion of thought centres round the expression 'mandatory'. It, would be profitable to analyse the distinction between the mandatory character of certain provisions of law due to non-compliance with which the suit is liable to be dismissed in limine and other provisions of law for non-compliance with which the suit is liable to be dismissed not in limine but at a later stage. It, would be profitable to analyse the distinction between the mandatory character of certain provisions of law due to non-compliance with which the suit is liable to be dismissed in limine and other provisions of law for non-compliance with which the suit is liable to be dismissed not in limine but at a later stage. Section 80, CPC is mandatory in the sense that no suit against the State shall be instituted until the expiration of two months next after notice in writing, has been served. If there is non-compliance with Section 80, the suit As liable to be dismissed in limine. Question of giving opportunity to the Plaintiff for removal of defects does not arise. If the plaint is in order, the Plaintiff is called upon to tile the process fee for service of notice on the Defendant, and some time is granted for tiling requisites. If, despite time being granted, the Plaintiff fails to file requisites on the date fixed, it is open to the Court to dismiss the suit for non-compliance with its order. The order of the Court directing filing of process-fee is under the provisions of the CPC and is not mandatory in the sense that due to non-compliance with such order the suit is not to be dismissed in limine. The order, however, ultimately becomes mandatory as due to the non-compliance therewith, it is open to the Court to dismiss the suit. In the ultimate analysis the net result in both the cases is the same. This distinction should be clearly kept in view Rule 11 is not mandatory in the sense that due to its non-compliance the suit is not to be dismissed in limine If objection is taken in the written statement as to non-compliance with the particulars under Rule 11, the Court would call upon the Plaintiff to rectify the defects and given necessary particulars. In that sense it is not mandatory. But after such opportunity is given, if the necessary particulars are not furnished, it is open to the Court to dismiss the suit for non-compliance with Rule 11. At that stage the Rule becomes mandatory. The learned Subordinate Judge failed to keep in view the aforesaid distinction. In that sense it is not mandatory. But after such opportunity is given, if the necessary particulars are not furnished, it is open to the Court to dismiss the suit for non-compliance with Rule 11. At that stage the Rule becomes mandatory. The learned Subordinate Judge failed to keep in view the aforesaid distinction. Where the objection is taken in the written statement and the defects are not removed as directed by the Court, dismissal of the suit entails and the question of prejudice does not at all arise. Question of prejudice is wholly foreign to the objections taken in the trial Court at the earliest opportunity. It was ruled in ILR 1961 Cutt 430 that the question of prejudice was to be examined if the objection as to non-compliance with Rule 11 was raised for the first time in higher Courts. 6. In this case objection was clearly taken in para 5 of the written statement. In view of the admission in para 10 of the plaint that no account had been maintained, Plaintiff could not have rectified the defect. Thus the suit is liable to be dismissed for non-compliance with Rule 11(iii). 7. Mr. Swain, however, contends on the authority of Fakir v. Sankar ILR 1962 Cutt 771, that non-maintenance of accounts u/s 7 would entail only imposition of penalty u/s 19 of the Act and not the dismissal of the suit. The validity of this argument may be closely examined. 8. Section 7 lays down that a registered money-lender is to maintain account. Swain, however, contends on the authority of Fakir v. Sankar ILR 1962 Cutt 771, that non-maintenance of accounts u/s 7 would entail only imposition of penalty u/s 19 of the Act and not the dismissal of the suit. The validity of this argument may be closely examined. 8. Section 7 lays down that a registered money-lender is to maintain account. Section 7, so far it is relevant, runs thus- Every registered money-lender shall in respect of every loan advanced by him after the commencement of this Act and every transaction made by him after the commencement of this Act relating to any loan advanced by him before the commencement of this Act (a) regularly record and maintain, or cause to be recorded and maintained, an account showing for each debtor (i) the date of the loan, the amount of the principal of the loan and the rate per centum per annum of interest charged on the loan; (ii) the amount of every payment received by the money-lender in respect of the loan, and the date of such payment; and (iii) any other terms which may be agreed in between the money-lender and the debtor; It would thus appear that a registered money-lender is to regularly record and maintain an account in respect of every loan. Section 7 came into force on 1-4-1950. The suit loan was advanced on 8-1-1945. Till 1-4-1950 Plaintiff was not bound to maintain an account u/s 7. The section, however, insists that account is to be maintained in respect of every transaction made after 1-4-1950 relating to any loan advanced 'before that date. Payments of interest in instalments on 2-2-1950, 12-6-1953 and 15-5-1956 are transactions made after 1-4-1950 relating to the suit loan. u/s 7 it was obligatory for the Plaintiff to maintain account of the payments. 9. Section 19 of the Act prescribes the penalty for contravention of the provisions of Section 7. It lays down that- If any money-lender or his agent wilfully contravene any of the provisions of Section 7, such money-lender or I agent, as the case mad be, shall be punishable with fine not exceeding five hundred rupees. Penalty may be imposed if the contravention is wilful. In this case the Plaintiff has failed to maintain an account. The contravention is clearly wilful. u/s 19 penalty could be imposed. 10. Penalty may be imposed if the contravention is wilful. In this case the Plaintiff has failed to maintain an account. The contravention is clearly wilful. u/s 19 penalty could be imposed. 10. The question for consideration, however, is whether the suit is not liable to be dismissed for non-compliance with Rule 11(iii) as a penalty may be imposed u/s 19. The scope of the two provisions are wholly different. The maximum penalty u/s 19 is five hundred rupees only. Dismissal of a suit for non-compliance with Rule 11 might be of unlimited valuation. One is not a substitute for the other. Besides dismissal of the suit, the penalty can be imposed. Existence of a provision for imposing penalty does not detract from the enforcement of Rule 11(iii) which would entail dismissal of the suit. 11. ILR 1962 Cutt 771 does not take a different view and is distinguishable on facts. In that case, there was an account book. It had no other defect excepting that it did not contain an entry regarding one payment of interest. An argument was advanced that when the account did not contain an entry regarding interest, the account was not in conformity with the provisions of Section 7 and, as such, it was not an account at all and the copy of the account so supplied would not be treated as satisfying the requirement under Rule 11(iii) and the suit was to fail 011 that ground. It was held in that case that though the copy of the account mentioned in the plaint was not strictly in compliance with the provisions of Section 7, all the same it was an account within the meaning of Section 7 and there was compliance with Rule 11 when the account was filed. Rule 11 is complied with when the copy of the account is contained in the plaint. However meticulously an account may be maintained, it is difficult to say that no error would at all creep in. Errors are found even in accounts maintained in treasury. It would be fantastic to lay down a rule that no error would creep in the account of a money-lender because it is maintained under statutory provisions. However meticulously an account may be maintained, it is difficult to say that no error would at all creep in. Errors are found even in accounts maintained in treasury. It would be fantastic to lay down a rule that no error would creep in the account of a money-lender because it is maintained under statutory provisions. All that was said in ILR 1962 Cutt 771 was to the effect that omission of an entry relating to payment interest cannot justify a conclusion that a copy of the account referred to in Clause (a) of Section 7 had not been mentioned in the plaint. That case is distinguishable from the present case where no account has at all been maintained. 12. The account maintained u/s 7(a) may not be strictly in accordance with its provisions; none the less it is an account. Rule 11(iii) is complied with if copy of such an account is contained in the plaint. If that account is not in conformity with the mandates prescribed in Section 7(a) and the contravention is wilful, penalty u/s 19 is attracted. To illustrate, if the account does not show the date of the loan, or the amount of the principal or the amount of every payment and such omission is wilful, penalty u/s 19 is attracted. If a copy of such account is, however, contained in the plaint, the suit cannot be dismissed for non-compliance with Rule 11. Thus the Rule has nothing to do with the accuracy of the account maintained u/s 7(a); it only postulates that a copy of the account enjoined upon u/s 7(a) is to be contained in the plaint. The expression "referred to in Clause (a) of section 1" in Rule 11 merely qualifies "a copy of the account" and not to the accuracy of such account in accordance with the provisions of Section 7(a). 13. As the Plaintiff did not maintain any account relating to the transactions in respect of the loans subsequent to the date of commencement of Section 7 he was not in a position to furnish the particulars in the plaint in conformity with Rule 11(iii). In ILR 1962 Cutt 771 the suit was not dismissed on the finding that Rule 11(iii) was complied with by production of accounts books which were slightly inaccurate. In ILR 1962 Cutt 771 the suit was not dismissed on the finding that Rule 11(iii) was complied with by production of accounts books which were slightly inaccurate. With regard to Section 9 it was observed that the Plaintiff was liable to be penalised u/s 19 if contravention was found to be wilful. That decision has no application to the present case. 14. The last contention of Mr. Swain was that endorsement on the back of the promissory note ext 1 might be treated as accounts within the meaning of Section 7(a). This contention cannot be accepted. The endorsements made on the back of the promissory note cannot come within the purview of the accounts prescribed u/s 7. The statutory provision insisting upon maintenance of accounts is to avoid forgery, fraud and creation of fictitious documents by the money lender. Compulsory maintenance of accounts is insisted upon to enable the Court to examine the truth or otherwise of the Plaintiff's case of the advancements of the loan. Besides the endorsements of payments on the documents of loan, accounts are to be separately maintained. 15. The learned Subordinate Judge fall in to error in construing ILR 1962 Cutt 771 as laying down a proposition that the suit is not liable to be dismissed for non-compliance with Rule 11(iii) when the Plaintiff does not maintain an account at all. Plaintiff's suit is liable to be dismissed on this ground 16. In the result, the judgment of the lower appellate Court is set aside and the suit is dismissed. The Second appeal is allowed. In this circumstances, parties to bear their own costs throughout. Das, J. 16. I agree. Final Result : Allowed