C.R. No. 1227 of 2009 1
IN THE PUNJAB AND HARYANA HIGH COURT AT
CHANDIGARH
C.R. No. 1227 of 2009 (O&M)
Date of Decision : 13.7.2009
Dina Nath
.......... Petitioner
Versus
Yash Pal
...... Respondent
CORAM : HON'BLE MR. JUSTICE VINOD K. SHARMA
Present : Mr. Vijay Rana, Advocate
for the petitioner.
Mr. Tribhuvan Singla, Advocate
for the respondent.
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VINOD K. SHARMA, J. (ORAL)
C.M. No. 5548-CII of 2009
This application under Section 151 of the Code of Civil
Procedure has been moved seeking permission for placing on record the
copies of Annexures P-1 to P-8.
For the reasons stated in the application, the C.M. is allowed.
The applicant-petitioner is granted permission to place on record the copies
of Annexures P-1 to P-8.
C.M. No. 5549-CII of 2009
This application under Section 151 of the Code of Civil
Procedure has been moved seeking exemption from filing the certified /
C.R. No. 1227 of 2009 2
original copies of Annexures P-1 to P-8.
For the reasons stated in the application, the C.M. is allowed.
The applicant-petitioner is exempted from filing the certified / original
copies of Annexures P-1 to P-8.
C.M. No. 5772-CII of 2009
This application under Section 151 of the Code of Civil
Procedure has been moved seeking exemption from filing the certified copy
of Annexures P-9.
For the reasons stated in the application, the C.M. is allowed.
The applicant-petitioner is exempted from filing the certified copy of
Annexures P-9.
C.R. No. 1227 of 2009 & C.M. No. 5550-CII of 2009
This revision petition is directed against the order dated
20.1.2009, passed by the learned Executing Court vide which application
moved by the petitioner under Section 3 of the Punjab Registration of
Money Lender’s Act, 1938, stands dismissed.
The respondent / decree-holder had filed a suit for recovery
against the petitioner herein, for recovery of amount advanced to him by
way of loan along with interest.
The suit was decreed.
The respondent / decree-holder filed an execution-application,
wherein the petitioner moved an application under Section 3 of the Punjab
Registration of Money Lenders Act, 1938 for dismissal of the execution
C.R. No. 1227 of 2009 3
application for want of money Lenders licence.
Section 3 of the Punjab Registration of Money Lenders Act,
1938, reads as under :-
“3. Suits and applications by money-lenders barred,
unless money-lender is registered and licensed.-
Notwithstanding anything contained in any other
enactment for the time being in force, a suit by a money-
lender for the recovery of a loan, or an application by a
money-lender for the execution of a decree relating to a
loan, shall, after the commencement of this Act, be
dismissed, unless the money lender –
(a) at the time of the institution of the suit or
presentation of the application for
execution: or
(b) at the time of decreeing the suit or deciding
the application for execution –
(i) is registered; and
(ii) holds a valid licence, in such form and
manner as may be prescribed; or
(iii) holds a certificate from a Commissioner
granted under section 11, specifying the
loan in respect of which the suit is instituted,
or the decree in respect of which the
application for execution is presented; or
(iv) if he is not already a registered and licensed
money-lender satisfied the Court that he has
applied to the Collector to be registered and
licensed and that such application is
pending; provided that in such a case, the
suit or application shall not be finally
C.R. No. 1227 of 2009 4disposed or until the application of the
money-lender for registration and grant of
licence pending before the Collector is
finally disposed of.”
The contention of the learned counsel for the petitioner,
therefore, is that at the time of presentation of application for execution it
was incumbent upon the decree-holder to have produced the money lender’s
licence, and in absence thereof the decree could not be executed.
In support of the claim, the petitioner also cited certain
instances wherein the decree-holder had advanced loan to some other
persons on promisory note.
The application was contested, wherein a stand was taken by
the respondent / decree-holder, that he was not doing the business of money
lending and that the loan advanced was friendly loan.
The learned executing Court held, that the plea of petitioner
that the decree-holder was money lender, was rejected by the District Judge
in appeal filed by the petitioner against the judgment and decree.
In support of the contention raised, the learned counsel for the
petitioner has placed reliance on the judgment of this Court in the case of
Daljit Kumar and another Vs. Popal Dass AIR 1981 P&H 211, wherein
this Court has been pleased to lay down as under :-
“3. The sole point which has been urged by the
learned counsel for the petitioners is that the respondent
having been admitted to be a money lender, he had a
statutory duty under Section 3 of the Punjab Registration
C.R. No. 1227 of 2009 5of Money Lenders Act, 1938 to produce the certificate of
registration granted under the Act which he never did. A
consequence of this default is that his suit has to be
dismissed as prescribed under Section 3 of the Act. This
mandatory provision of law appears to have been
ignored by both the Courts below. If any authority is
required on the point, the same is contained in Kapur
Singh v. Firm Bhagwan Das Sat Pal, (1971) 73 Punj LR
628.”
The contention of the learned counsel for the petitioner,
therefore, is that the impugned order deserves to be set aside, as the learned
executing Court has dismissed the application, by misinterpreting the
provisions of Section 3 of the Punjab Registration of Money Lenders Act,
1938, reproduced above.
The learned counsel for the respondent /decree-holder
contends, that the application moved by the petitioner was not maintainable
for the reason, that this plea was specifically declined by the learned District
Judge in an appeal. He referred to para 15 of the judgment passed by the
learned District Judge, Jalandhar dated 15.10.2007, which reads as under :-
“Under the Registration of Money Lenders Act only a
money lender is required to possess a licence under that
Act before filing a suit for the recovery of the loan
advanced by him. It was no where pleaded by the
defendant that the plaintiff is a money lender nor
anything has been proved on the record from which it
could be inferred that he was doing money lending
business. Therefore, he was not supposed to possess a
C.R. No. 1227 of 2009 6licence of money lender before instituting this suit. The
argument advanced by the learned counsel for the
defendant to that effect is totally devoid of any merit. On
the basis of the evidence produced on the record, this
issue was correctly decided by the learned trial court
and that finding is hereby upheld.”On consideration of the matter, I find no force in the contention
raised by the learned counsel for the petitioner. It may be noticed, that as
per Section 3 of the Punjab Registration of Money Lender’s Act, 1938, the
money lenders licence is required at the time of institution of the suit or
presentation of the application for execution, only in case the party is a
money lender.
Once a plea raised by the petitioner, before the learned lower
appellate Court in appeal against the judgment and decree of the learned
trial Court was rejected, by holding, that it has not been proved that the
decree-holder was a money lender.
It was not open to raise the same plea before the learned
executing Court, as learned executing Court cannot go behind the decree to
record a different finding than the one recorded by the learned Court.
The judgment relied upon by the petitioner is not applicable to
the facts of the present case, as in the said case the factum of respondent
being money lender, was admitted and decree-holder had not sent any
accounts to the petitioners before filing the suit. In the case in hand the plea
that respondent is a money lender stood rejected, in main appeal.
No fault can be found with the order passed by the learned
C.R. No. 1227 of 2009 7executing Court, which may call for any interference by this Court.
No merit.
Dismissed.
13.7.2009 ( VINOD K. SHARMA ) 'sp' JUDGE