Arora Finance Company, Tonk v. Naseer Ahammad — 1987 DIGILAW 284 (RAJ)

FAROOQ HASAN, J.—This second appeal is directed against the judgment & decree dated 14.12.79 passed by District Judge, Tonk (first appellate court) affirming the judgment & decree dated 30.8.70 passed by the Civil Judge Tonk (trial court) in a suit for recovery of Rs. 5,000/-. 2. Brief facts giving rise to this appeal are that the plaintiff appellants filed a suit for recovery of Rs. 5000/- against the defendant, with Rs. 3,500/- on 16.2.73 on interest at Rs. 1/- per cent per month from plaintiff No 2, partner of the firm-plaintiff a pro-note and receipt for the same is also alleged to have been executed by the defendant Besides this, the defendant borrowed a sum of Rs. 3500/- on the basis of another pro-note & receipt from the plaintiff firm on 8.8.74. 3. The defendant in his written statement admitted to have borrowed the money but the amount of loan was shown different by the defendant. The defendant further pleaded that the plaintiff appellants are money lenders within the definition of Section 2(10) of the Rajasthan Money Lenders Act, 1963 (for brevity, the Act, 1963), and that, the plaintiffs are not having any licence and since they have also not complied with the provisions contained in section 22 & 23 of the Act, 1963, according to the defendant respondent, the suit is not maintainable. 4. On the basis of the pleadings of the parties, the learned trial court framed as many as eight issues including issue of relief. In view of the provisions of Section 26 of the Act, 1963, the trial court only gave its finding on issue No. 6 & 7 and it was found by the trial court that the plaintiffs are money lenders and have got no licence under the Act, 1963 and have failed to comply with the provisions of Section 22 & 23 of the Act, 1963, and ultimately the suit of the plaintiff was dismissed without deciding other issues. On an appeal by the plaintiffs, the first appellate court while dismissing the appeal, affirmed the judgment of the trial court. Hence this second appeal. 5. I have heard Shri P. D. Mathur for the plaintiffs and Shri S. M. Ali for the respondents defendants, and have gone through the record. 6. Before I consider the rival contentions of the parties, it would be proper to quote the issues Nos. Hence this second appeal. 5. I have heard Shri P. D. Mathur for the plaintiffs and Shri S. M. Ali for the respondents defendants, and have gone through the record. 6. Before I consider the rival contentions of the parties, it would be proper to quote the issues Nos. 6 & 7 framed by the trial court hereunder: "6. Whether the plaintiffs are money lenders with respect to this loan? 7. If the issue No. 6 is decided in the affirmative, then whether the plaintiffs have a valid licence for money lending and have complied with the provisions of Sections 22 & 23 of the Rajasthan Money Lenders Act to what effect?" 7. Shri Mathur on behalf of the plaintiffs submitted that the subordinate courts fell in error in deciding the issues No. 6 and 7 against the plaintiffs appellants. Learned counsel merely advanced his arguments with regard to section 26 of the Act, and submitted that the plaintiff appellants filed an application before the trial court under Section 11(2) of the Act which has now been amended by the Amendment Act (Rajasthan Act No. 13 of 1975) published in the Rajasthan Gazette, Part IV-A (Extraordinary) dated 13.2.1976 (pp 181 to 185) but, the trial court wrongly dismissed this application. 8. Learned counsel further submitted that the appellants were having licence under the Act, 1963 but the same was submitted in original to the registry for its renewal. The licences are filed before this court with an application under O. 41.R.27 CPC praying therein that he documents (licences) may be taken on record. 9. Learned counsel for the respondents on the other hand, submitted that in the instant case, the plaintiff appellants failed to comply with the provisions of sections 11 and 26 of the Act, 1963 and the suit on the plaintiff appellants has been dismissed because of the reasons that the plaintiffs appellants failed to comply with the provisions of the Act, 1963. 10. I have given my thoughtful consideration to the rival contention of the parties. 11. Looking to the provisions contained in Sections 11 & 26 of the Act, it cannot be disputed that the suit can be dismissed on two grounds which have been mentioned in sections 11 and 26 of the Act, 1963. 10. I have given my thoughtful consideration to the rival contention of the parties. 11. Looking to the provisions contained in Sections 11 & 26 of the Act, it cannot be disputed that the suit can be dismissed on two grounds which have been mentioned in sections 11 and 26 of the Act, 1963. Under Section 11 of the Act, 1963, if the money lender at the time of advancing the loan was not having licence, that suit shall be dismissed forthwith without going into merits of the case. Similarly, under sec. 26 of the Act, 1963, if it is found that the provisions of Sections 22 and 23 of the Act, 1963 have not been complied with by the money lender in respect of whole or any part of the claim, the suit shall be dismissed. 12. In the instant case, it is not disputed that the plaintiffs are money lenders and this fact is clear from the admission of the plaintiffs appellants and the licences which have been filed on behalf of the plaintiffs appellants. 13. The only question before this Court is, whether the subordinate courts were justified in dismissing the suit of the plaintiffs appellants due to non compliance of the provisions as contained in Section 11 & 26 of the Act? 14. In Ramchandra Vs. Prabhulal (1) the implication of Section 26 of the Act, 1963 was considered and it was observed that the amended provisions have retrospective effect. The relevant observations read as under: "Sec. 11 and 26 were amended in 1975. In Sec. 11, the Legislature expressly provided an exception of its application to pending cases, but no such exception was carved out in Sec. 26(b). The relevant observations read as under: "Sec. 11 and 26 were amended in 1975. In Sec. 11, the Legislature expressly provided an exception of its application to pending cases, but no such exception was carved out in Sec. 26(b). When the legislature acts at a particular point of time, in legislating two provisions in the some Act, and in one retrospective effect is avoided by making an exception and in the other drastic consequences are contemplated by not enacting such an explanation or exception, this Court while interpreting the law has got no option but to respect the wishes of legislature, though seemingly it may create hardship to those money lenders who have already filed there suits and were not aware of the drastic consequences of non compliance of the Section of the Act, such an intention of the legislature cannot be changed unless it lapse any legislative authority or become violative of any of the provisions of the Constitution. None of the two contingencies contemplated have been shown to exist, as there is no challenge to planer authority, nor there is any violation of the Constitutional provisions. General Principle of the statute is that the statute should be treated prospective and not retrospective, more so, when the provi sions are penal in nature. However, it all depends upon the scheme of the Act, intention to enact a particular statute and merely on the basis of generalisation when expressly by providing central language in sec. 11 in contract to section 26(b), the legislature expresses its intention, this Court cannot infer to the contrary, (paras 5 & 6). 15. Similarly, in Kanhaiyalal Vs. Shri Lal (2), it has been observed that keeping in view the purpose and object or the reasons and spirit of the Act the provisions of Sec. 26(b) of the Act as they stand after the Amendment by the Amending Act of 1976 will apply to the pending suits also and if sections 22 and 23 have not been complied with then the court has to dismiss the suit as the word suit as used in amended Sec. 26 (b) embrace within the ending suits. 16. In another decision in Ranchordass Vs. Malook Chand (3) it has been observed by this court that the intention of the legislature has been clearly and undoubtedly expressed that the amended section 26 (b) is to apply to the pending suits. 16. In another decision in Ranchordass Vs. Malook Chand (3) it has been observed by this court that the intention of the legislature has been clearly and undoubtedly expressed that the amended section 26 (b) is to apply to the pending suits. It is enjoined that the court shall dismiss the whole suit where it finds that the provisions of section 22 & 23 of the Act have not been complied with by the money lender in respect of the whole claim. 17. In view of the aforesaid decisions, it is thus clear that sections 11 and 26 (b)as amended by the Amending Act of 1976 have retrospective effect. In Section 11 of the Act, 1963, the legislature expressly provided as exception of its application to its pending cases but no such exception was carved out in Section 26 (b) when the Legislature acts at a particular point of time in legislating two provisions in the same Act and in one retrospective effect is avoided by making an exception and in the other drastic consequences are contemplated by not enacting such an exception or explanation. In this view of the matter, if it is assumed that the plaintiffs were having licence then too, it is abundantly clear that the plaintiffs appellants had not complied with the provisions of sections 22 and 23 of the Act, 1963 and on that count, both the Subordinate Courts were justified in dismissing the suit of the plaintiff, because it has no where been claimed by the plaintiffs appellant that they have complied with the provisions of sections 22 and 23 of the Act, 1963. At this stage, learned counsel for the appellants submitted that this is a matter of evidence and if the licences are allowed to be taken then the plaintiff appellants would be in a position to lead evidence with regard to the compliance of the provisions of Sections 22 and 23 of the Act, 1963. I am unable to accept the contention of the learned counsel for the appellants because of the reasons that on the basis of pleadings of the parties, the issues were framed by the learned trial court and issues Nos. 6 and 7 (as quoted above) were framed. 18. I am unable to accept the contention of the learned counsel for the appellants because of the reasons that on the basis of pleadings of the parties, the issues were framed by the learned trial court and issues Nos. 6 and 7 (as quoted above) were framed. 18. In view of issue No. 7, it was obligatory on the part of the plaintiffs appellants to have adduced the evidence to the fact that they have complied with the provisions of Sections 22 and 23 of the Act, 1963. But, the plaintiffs appellants failed to produce or adduce any evidence on this point. In these circumstances, no further opportunity can now be afforded at the stage of second appeal to the plaintiffs appellants to prove issue No 7. 19. Learned counsel for the appellant then submitted that a reference has already been made on the question as to whether the provisions of section 26(b) of the Act. 1963, have its retrospective effect so, in this case, reference may also be made on the same question. As I have already discussed that section 26 (b) of the Act, is having its retrospective effect and I have no doubt about this conclusion in my mind. In these circumstances, I do not feel it necessary to make any reference on this point. 20. In view of the foregoing discussions, in the result, I do not find any force in this appeal and the case is hereby dismissed without any order as to costs.