J U D G M E N T The substantial question of law that arises for consideration in this Second Appeal is whether, without there being an issue framed as to whether the plaintiff is a money-lender or not, the suit could have been proceed with? 2. The facts, which are relevant for the purpose of deciding the above substantial question of law, may be noticed as under: 3. The appellant is the plaintiff and the respondent is the defendant in O.S.No.4 of 1991 on the file of the learned Subordinate Judge, Sathupally, which was laid for recovery of an amount of Rs.34,500/- with future interest at 24% per annum from the date of suit till realization. The parties are hereinafter referred to as arrayed in the suit. 4. It is the case of the plaintiff that he knows the defendant since a long time. The defendant borrowed an amount of Rs.20,000/- from him on 14-2-1988 at Sathupally, Khammam district and executed a promissory note in his favour promising to repay the entire amount with interest at 24% per annum. When the defendant did not repay any amount in spite of demand made by him, he got issued two registered notices through his Advocate on 30-7-1990 and 26-9-1990 demanding the defendant to repay the entire amount with interest. Since there was no response, this suit is filed. 5. Whereas, it is the defendant’s case that he had borrowed an amount of Rs.10,000/- from the plaintiff on 4-2-1985 and executed a promissory note. However, he repaid an amount of Rs.7,000/- to the plaintiff in the month of September,1986 and demanded him to make an endorsement of payment on the reverse of the promissory note. The plaintiff evaded the same by saying that the promissory note was not available with him at that point of time and he will pass such an endorsement subsequently. Believing the plaintiff, he did not press for presenting the promissory note immediately. Further, it was denied that the plaintiff had issued any notice either on 30-7-1990 or on 26-9-1990 and the promissory note dated 4-2-1985 was clearly barred by time. He reliably learnt that the plaintiff altered the date ‘4’ as ‘14’ and the year ‘1985’ as ‘1988’ and filed the suit with ulterior motive of getting wrongful gain. Thus, the suit is .liable to be dismissed on account of material alterations. He reliably learnt that the plaintiff altered the date ‘4’ as ‘14’ and the year ‘1985’ as ‘1988’ and filed the suit with ulterior motive of getting wrongful gain. Thus, the suit is .liable to be dismissed on account of material alterations. Further, the plaintiff is not entitled to claim interest at the rate of 24% per annum, since he is an agriculturist. Either on the date of execution of the promissory note or on the date of filing of the suit, he was not residing at Tellamada in Sathupalli Mandal. In fact, he was residing at Vijayawada during that period. There was no occasion for him to borrow an amount of Rs.20,000/- from the plaintiff on 14-2-1988. The plaintiff has no cause of action to file the suit. The suit is not maintainable. 6. On the basis of the above pleadings, the following issues were settled for trial: 1. Whether the plaintiff is entered to the claim of Rs.34,500/under the suit pronote ? 2. Whether there is material alteration in the suit pronote in respect of the date and year of the borrowing and as such, it is barred by limitation ? 3. Whether the interest claimed by the plaintiff is excessive and is liable to be scaled down ? 4. To what relief the plaintiff is entitled ? 7. In support of his case, plaintiff examined P.Ws.1 and 2 and marked Exs.A1 to A5. On behalf of the defendant, D.Ws.1 to 3 were examined, Out no documents were marked. After a detailed consideration of the entire evidence on record, the trial Court gave a finding on all the issues in favour of the plaintiff and thus decreed the suit as prayed for. Aggrieved by the same, an appeal in A.S.No.20 of 1996 on the file of the learned District Judge at Khammam was filed. The appellate Court, after reappreciation of the entire evidence on record and on perusal of the Judgment of the trial Court, however, reversed the finding of the trial Court on the question of maintainability of the suit and allowed the appeal and dismissed the suit on the ground that the plaintiff is doing money lending business without obtaining licence and as such, he cannot enforce and seek the relief through a Court of law violating the provisions of law. It was also held that it is necessary that in this type of suits, where loan transactions took place in the Telangana Area, two issues should be framed with regard to taking of licence for doing money lending business and whether there is any ground for granting exemption under the provisions of Section 4(g) and (h) of the Hyderabad Money Lenders Act, 1349 Fasli (for short ‘the Act’). Since these issues were not framed, it was held that the suit itself is not maintainable. However, on other issues, the appellate Court concurred with the findings of the trial Court. Challenging the same, the present Second Appeal is filed. 8. Learned counsel for the appellant-plaintiff contended that in the teeth of the admissions made by the plaintiff that he is a money lender and he lent the money not from the firm, which was doing money lending business, but from the money derived from his agriculture and in the absence of any denial in the written statement filed by the defendant, stating that the plaintiff is a money lender, but he has no licence and the amounts lent by him to the defendant form part of the money lending business and not from his agricultural income, the question of any issue being framed as to whether the plaintiff has money lending licence or not does not arise therefore, the appellate Court has committed an error in reversing the finding of the trial Court, only on the ground that the trial Court has not framed an issue that whether the plaintiff has money lending licence or not. Learned counsel further stated that, in fact, it is the plaintiff, who made an assertion that he is a money lender and he has lent this money from his agricultural income and not from the firm. Further, he has also asserted that he is doing money lending business. In spite of this, in the written statement, the defendant did not dispute as to the money lending licence held by the plaintiff or the money lent by the plaintiff is his own agricultural income. Further, he has also asserted that he is doing money lending business. In spite of this, in the written statement, the defendant did not dispute as to the money lending licence held by the plaintiff or the money lent by the plaintiff is his own agricultural income. In this regard, the learned counsel relied upon a Judgment of a Division Bench of this Court reported in MUNAGALA YADGIRI v. PITTALA VEERIAH(1) and submitted that under the Act, a professional money-lender, who has not obtained a licence cannot maintain a suit in a civil Court for recovery of amounts due to him. A person, who seeks to non-suit the plaintiff, should necessarily allege and prove that the plaintiff is a professional money-lender. Section 9(2) of the Act, _in clear terms, says that if it is proved that the plaintiff is a money lender as defined in sub-section (7) of Section 2 of the Act, but does not hold a licence, the Court shall dismiss the suit. The plaintiff cannot prove that he is not a professional money-lender and it is for the defendant to allege and prove that the plaintiff is a professional money lender, that is to say, the burden of proof is on the, defendant. He further submitted that in the present case, the lower appellate Court has wrongly proceeded with the matter as if the burden is on the plaintiff to prove that he is a money lender and whether he has a licence or not and whether the money lent to the plaintiff is of the firm or of his agricultural income. 9. Learned counsel for the appellant further relied upon another Division Bench Judgment of this Court in KOMRAVELLI VARA LAXMI v. SYED KASIM HUSSAIN(2) and submitted that it is well settled now that the burden of proof lies upon the defendant to establish that the plaintiff is a money-lender within the meaning of the Hyderabad Money-Lenders Act and the suit is consequently hit by the provisions of the Act. Further, in order to establish that he is carrying on such a business, it is not sufficient to prove that he had occasionally lent money at a remunerative rate of interest; it is necessary to prove some degree of system and continuity in his money lending transactions and something more than loans to friends or relatives. Further, in order to establish that he is carrying on such a business, it is not sufficient to prove that he had occasionally lent money at a remunerative rate of interest; it is necessary to prove some degree of system and continuity in his money lending transactions and something more than loans to friends or relatives. Whereas, in the instant case, there is no such pleading and evidence; therefore, the question of an issue being framed under Section 9 of the Act, does not arise. Learned counsel yet relied upon another decision of a Division Bench of this Court in SOMANATH BARAMAN v. JAGANNATHA RA0(3) and submitted that one casual or stray transaction by a person cannot be called an act done in the ordinary course of business. A pleading as to the habit and continuity that is required to satisfy the test of regular or ordinary course of business is absent in this case. Therefore, Sections 3(5)(a) and 9 of the Act are not attracted to this case and the suit of the appellant-plaintiff must be held to have been rightly decreed by the trial Court. However, while referring to the Judgment in A. AGAIAH v. DEEPCHAND SINGH(4) which was heavily relied upon by the learned counsel for the respondent and on the basis of which the Judgment of the trial Court was reversed, the learned counsel stated that such a question does not arise in the instant case and this Judgment has no relevance to the facts of this case in view of the above three Judgments, wherein it was held that the burden is cast on the defendant. In fact, taking inspiration even from this Judgment, the learned counsel stated that the onus of showing that the plaintiff is a money lender as defined in Section 2(7) of the Act would be on the defendant and if he is ex parte and does not adduce any proof, the logical consequence of the Court holding that it is not proved that the plaintiff is a money lender will follow. In this case, though it was not an ex parte decree, but in the teeth of the admissions made by the plaintiff that he is a money lender, but he lent money from his agricultural income, the question of such issue being framed as required under Section 9(1) of the Act does not arise. In this case, though it was not an ex parte decree, but in the teeth of the admissions made by the plaintiff that he is a money lender, but he lent money from his agricultural income, the question of such issue being framed as required under Section 9(1) of the Act does not arise. May be, in a case where there is no admission by the plaintiff, it is necessary. But, if any one party asserts as to his status, unless and until it is disputed by the defendants, framing of such issues does not arise. 10. Per contra, Sri Movva Chandrasekhar Rao, learned counsel appearing for the respondent, strenuously contended that in the absence of production of money lending licence and the accounts of the business, an adverse inference must be drawn against the plaintiff that he has no money lending licence, irrespective of the fact whether he has asserted and whether the same was disputed by the defendant or not. Under the Act many safeguards have been made and this is only for the purpose of protecting the people from unscrupulous money lenders doing business without any licence etc. Therefore, whether the defendant denied or not, there must be an issue as per Section 9 of the Act and if no such issue is framed, the suit itself is liable to be dismissed. A reading of Section 3 read with Section 5 of the Act, makes it clear that firstly without a licence, money lending cannot be done and secondly money-lender has to maintain accounts for each of the debtor separately. No such evidence could have been let in without framing such an issue. Further, nonproduction of any record would lead to drawing an adverse inference against the plaintiff. In this regard, the learned counsel relied upon the Judgment reported in GOPAL KRISHNAJI v. MOHD HAJI LATIF(5), wherein it was held as under: “5 ......Even if the burden of proof does not lie on a party the Court may draw an adverse inference if he withholds important documents in his possession which can throw light on the facts at issue. It is not, in our opinion, a sound practice for those desiring to rely upon a certain state of facts to withhold from the Court the best evidence which is in their possession which could throw light upon the issues in controversy and to rely upon the abstract doctrine of onus of proof.” Learned counsel also relied upon a Full Bench Judgment of this Court in SHAMAMMA v. RAMACHANDER RAO(6). In the said Judgment, the main question that had fallen for consideration is that when an application for renewal filed prior to the date of expiry and the licence was granted long subsequent to the period prescribed under Rule 11 of the Rules framed under the Act, whether it relates back to the date of licence or expiry of prior licence. Incidentally, the judgment also dealt with various provisions of the Act and held that if it is proved that a person is a money lender and does not hold a licence granted under Section 3 of the Act, the Court should dismiss the suit. Sub-section (2A) and (3) of Section 9 of the Act provides for some other penalties for violation of the provisions of Sections 5 and 6. Section 15 of the Act gives power to the Government to make the rules for carrying out the purposes of the Act. The Judgment has no direct bearing on the issue involved in this case. May be, the Judgment deals with various purposes for which the Act was enacted and the various provisions of the Act, which are for the benefit of the general public. Except this, it does not serve any purpose. Learned counsel for the respondent, as noticed above, also relied upon the Judgment reported in A. AGAIAH’s case (4 supra) and submitted that Section 9(1) of the Act calls upon every Court, if it is dealing with a suit relating to a loan, to find out whether the lender of the money is a money lender as defined in the Act and whether he has complied with the requirements mentioned therein. It is patent that there is no need for a pleading either by the defendant or by the plaintiff. It is sufficient if a suit relates to a loan. Otherwise, the Court cannot satisfactorily implement the provisions of the Money Lenders Act and safeguard the interests of the borrowers. 11. It is patent that there is no need for a pleading either by the defendant or by the plaintiff. It is sufficient if a suit relates to a loan. Otherwise, the Court cannot satisfactorily implement the provisions of the Money Lenders Act and safeguard the interests of the borrowers. 11. I have given my earnest consideration to the respective submissions made by the learned counsel on either side and gone through the entire material made available on record including the Judgments of the Courts below. 12. The Judgments relied upon by the learned counsel for the appellant speak that the burden is on the defendant to prove that the plaintiffmoney lender has no licence and the suit itself is not maintainable. Whereas, the judgments relied upon by the learned counsel for the respondent would show that whether there is a pleading or no pleading, in a suit relating to a loan under the Act, it is the duty of the Court to frame issues, whether the plaintiff has money lending business licence and whether he has been maintaining accounts for the same as required under the Act. Thus, there is no conflict in the Judgments referred to by the learned counsel on either side; one deals as to the burden of the defendant to prove that the plaintiff has no money lending business licence when there is an issue framed and the other speak that it is mandatory on the part of the trial Court, in view of Section 9 of the Act, to frame such issues and if such issues are not framed, the suit itself is liable to be dismissed. This is to give effective operation to the intendment of the Act. In view of the non-obstante clause with which Section 9 commences and the language of the provision itself, whether there is a pleading or not, the Court is bound to frame two issues. Under those circumstances, I am of the opinion that since the provisions of Section 9 of the Act are mandatory in its nature, as pointed out by the learned counsel for the respondent, as held AGAIAH’s case (4 supra), a duty is cast on the trial Court to frame such an issue and allow the parties to lead evidence. Under those circumstances, I am of the opinion that since the provisions of Section 9 of the Act are mandatory in its nature, as pointed out by the learned counsel for the respondent, as held AGAIAH’s case (4 supra), a duty is cast on the trial Court to frame such an issue and allow the parties to lead evidence. In this case, there is no pleading in the plaint that the plaintiff is a money lender and he is maintaining accounts regularly as required under the law. The plaintiff also did not assert in his chief-examination that he is a money lender and he has got licence. In fact, it is in the cross-examination, the defendant elicited that the plaintiff is a money lender and the money lent to the defendant is from his agricultural income and not from the firm. However, the trial Court did not take note of this aspect. It is the appellate Court, which had pointed out that in the teeth of the provisions of Section 9 of the Act, without there being such an issue framed by the trial Court, the suit itself is not maintainable. But the appellate Court erred in not remanding the matter for the purpose of framing such issues and directing the trial Court to give opportunity to the parties to lead their respective evidence in this regard. Instead of that, for the mistake committed by the trial Court, the appellate Court has simply allowed the appeal and dismissed the suit, which, in my considered opinion, is not proper. The lower appellate Court ought to have remanded the matter to the trial Court for framing necessary issues and allowing the parties to lead their evidence. 13. In view of the above, the finding of the lower appellate Court in reversing the Judgment of the trial Court on the ground that in view of non-framing of an issue, firstly, whether the plaintiff has a valid money lending licence under the Act, and secondly whether the plaintiff has maintained the accounts against each debtor, and if maintained, whether the suit amount was lent from the money lending business, the suit is liable to be dismissed, alone is set aside. However, insofar as the findings recorded on other issues by the trial Court, as confirmed by the lower appellate Court are concerned, are hereby confirmed. 14. However, insofar as the findings recorded on other issues by the trial Court, as confirmed by the lower appellate Court are concerned, are hereby confirmed. 14. In the result, the Second Appeal is allowed and the matter is remanded to the trial Court to frame the above two issues and allow both the parties to adduce evidence, both oral and documentary and decide whether the plaintiff has a money lending licence or not, whether he has maintained accounts as required under the law and whether the money lent by him to the defendant is from his money lending business, on its own merits. It is needless to mention that the other findings recorded by the trial Court as confirmed by the lower appellate Court and also by this Court would depend upon the result of the findings on these two issues. No order as to costs. --X—