JUDGMENT
S.K. Jha, J.
1. The plaintiffs are the appellants against the judgment of reversal. When the case was placed for hearing before the learned single Judge of this Court, namely, N. P. Singh, J., he referred this case to Division Bench by his order dated 22-12-1980, and the point formulated for decision is:
”Whether Section 8 read with Sections 4 5 and the definition of ‘Money-lender’ in Section 2 (k) of the Bihar Money Lenders Act, 1974, places a bar on Court from entertaining a suit filed by a person who claims to have made a casual advance to the defendant?”
Hence this case before us.
2. The facts are not in controversy. The appellants advanced a loan to the mother of the defendant. That fact is not denied. The concurrent findings of facts of the two courts below are that it was a case of a stray loan because the mother of the respondent happened to be a close neighbour and a ‘Mausi’ by village relationship as she had fallen in dire necessity of having such an accommodation loan.
3. It is admitted at all hand that if it were a case under the Bihar Money-Lenders Act, 1938, (Bihar Act 3 of 1938), as modified by the Act of 1939, (in short, ‘the old Act’), Section 4 of that Act could not have stood as an impediment to the maintainability of the suit by the appellants on account of a bar imposed by Section 4 of the old Act. In the meantime, however, a new statutory provision has come into force, being the Bihar Money Lenders Act, 1974, (Bihar Act 22 of 1975) (hereinafter referred to as ‘the new Act’), published in the Bihar Gazette Extraordinary, dated 29-4-1975. This suit has been instituted after commencement of the new Act.
4. Before the new Act was brought on the Statute Book it was consistently held that in order to defeat the claim of a money lender it must be established that he was a professional money lender having no licence under the Act. To
quote the language of a decision in Dwarkadas Marwari v. Kalipada Dey (1959 BLJR 145), presided over by Ramaswami, C. J. it was held that:
“……… The principle to be applied to
a case of this description has been laid down by this Bench in Saraswati Devi v. Janaklal Thakur (S. A. No. 1182 of 1954, D/- 12-12-1958). It was pointed out in that case that a man does not become a money-lender by reason of occasional loan to relations, friends or acquaintances, nor does he become a money-lender merely because on one or several isolated occasions he may, lend money to strangers. It was also pointed out in that case that the business of money-lending imports a notion of system, repetition and continuity, and that was the proper legal test to be applied for the purpose of finding out whether the plaintiff was a professional money-lender and whether the suit was barred by virtue of the provisions of Section 4 of the Bihar Money-Lenders Act. In another decision of a Division Bench of this Court in Sano Kasinath Chaudhuri v. Pattito Sabuto (1943-24 Pat LT 11): (AIR 1942 Pat 384) it was observed that there must be more than occasional and disconnected loans if there was to be a finding that the plaintiff was a professional money-lender and the bar of Section 4 of the Bihar Money-Lenders Act operates. In that case Harries, C. J. quoted with approval the observation of McCardie, J. in the case of Edgelow v. MacElwee (1918-1 KB 205) to the following effect:–
“A man does not become a moneylender by reason of occasional loans to relations, friends or acquaintances, whether interest be charged or not (underlining is ours for the sake of emphasis). Charity and kindliness are not the bases of usury. Nor does a man become a money-lender merely because he may upon one or several isolated occasions lend money to a stranger. There must be more than occasional and disconnected loans. There must be a business of money-lending, and the word ‘business’ imports the notion of system, repetition and continuity…… The line of demarcation cannot be defined with closeness or indicated by any specific formula. Each case must depend on its own particular features. It is ever a question of degree.” ”
5. The trial court decreed the suit on the ground that it was a case of a stray
money-lending by way of an accommodation loan, albeit, chargeable with interest, the appellants could not be said to be money-lenders within the meaning of the new Act as they were not professional money-lenders carrying on any business as such with continuity, system and the like aforementioned.
6. The lower appellate court, however, while upholding the finding that it was a case of stray money-lending and not habitual money-lending or a professional money-lending, relied upon the provisions of the new Act for the purposes of distinguishing old line of cases on the basis of the judgment of a learned single Judge of this Court in the case of Newa Lal Rai v. Mahendra Rai (1979 BBCJ 764).
7. In essence, we have to decide as to whether the learned single Judge has correctly laid down the law under the new Act. Section 8 of the new Act reads thus:
“No Court shall entertain a suit by a money-lender for recovery of loan advanced by him after the commencement of this Act, unless such money-lender was registered as such under this Ad. or the Bihar Money-lenders Act, 1933 (Act III of 1938) at the time when the loan was advanced.”
In effect, therefore, Section 8 is corresponding section to Section 4 of the 1938 Act, as modified by 1939 Act.
8. The question, therefore, that falls for determination is as to whether such a suit shall be barred in view of the provisions of the new Act. For deciding this question, in fitness of things, we feel it our bounden duty to reproduce the definition of a money-lender as laid down in Section 2 (k) of the new Act, which reads thus:
“Money-lender” means a person advancing a loan and shall include a Hindu undivided family and the legal representatives and successors-in-interest whether by inheritance, assignment or otherwise or a person who advances a loan;
In the corresponding definition of a money-lender under the old Act Section 2 (g) reads as follows:–
“money-lender” means a person who advances a loan and shall include Hindu undivided family and the legal representatives and successors-in-interest, whether by inheritance, assignment or otherwise or a person who advances a
loan.”
The difference in the language of
the two statutory provisions is only this that whereas in Section 2 (g) of the old Act ‘money-lender’ has been defined as meaning ‘a person who advances a loan’, in the new Act he has been defined as meaning ‘a person advancing a loan’. In our considered view we find no difference in the spirit and the substance of the two definitions, irrespective of slight grammatical variation in the participles used.
9. Let us then come to Sections 4 and 5 of the old Act, Section 4 thereof reads thus:
“(1) Every Sub-Registrar shall maintain a register of money-lenders in such form and containing such particulars as may be prescribed.
(2) Such register shall be deemed to be a public document within the meaning of the Evidence Act, 1872." Section 5 (1) of the old Act reads thus: "(1) Any person may make an application to be registered as money-lender. Every such application shall be in writing and shall state - (a) the name and address of the applicant; (b) the name and style under which he carries on or desires to carry on business as a money-lender; (c) the principal place of his business and the branches thereof, if any; (d) whether any certificates of registration previously granted to him under this Act has been cancelled; and (e) such other particulars as may be prescribed."
Sections 4 and 5 of the new Act are mutatis mutandis the same. There is absolutely no difference in the language between the two corresponding provisions. We, therefore, fail to see any distinction between series of decisions of this Court having a bearing on the question at hand nor do we see any change much less any substantial change in the language of the relevant corresponding provisions, excepting that Section 4 of the old Act has been substituted by Section 8 of the new Act.
10. U. C. Sharma, J. in the decision in the case of Newa Lal Rai (1979 BBCJ 764) (supra) has adopted the following reasoning:–
“………It has been observed in some
of the decisions that when Section 4 of the Act refers to ‘money-lenders’ it means professional money lender; profess on implies repetition, habit, continuity, etc., and, therefore, stray advances would not be covered by the expression ‘money-lender’ in Section 4 of the Act. It may, however, be pointed out that Section 4 of the Act speaks of a money lender and not of a professional money lender. So far as professional money lender is concerned, the observations as referred to above may be correct but since the Act does not speak of professional money lender, I do not think those observations would apply to a case arising out of the present Act…”
With great respect to the learned Judge, we do not feel persuaded by the logic of this argument, there being no difference between the relevant provisions of the two Acts, as noticed above. This distinction, which has been brought out by the learned single Judge, is wholly misplaced and misconceived,
11. It may be worthwhile to refer to a decision of a learned single Judge of this Court in the case of Bijaylal Agarwalla v. Prematha Nath Dutta (1967 Pat LR 259) wherein it has been held by Ahmed, J. that “for the purposes of registration under Section 4 of the Bihar Money-Lenders Act, 1939, the word ‘money-lender’ has to be used not in terms of its definition as provided in Section 2 (g) of the Act but in the sense in which it appears to have been used in the context of Section 5 of the Bihar Money-lenders Act, 1933. And when so read, the word ‘money-lender’ as used in Section 4 is construed to mean only those money lenders who are professional or carrying on money-lending as business.” A reference to this case has been necessitated on account of the fact that as we have noticed earlier. Section 2 (k) of the new Act defining a ‘money-lender’ read with Section 8 of the new Act have to be construed in the light of the language of Sections 4 and 5 of the new Act. We respectfully endorse and approve the decision of Ahmed, J. in the case of Bijaylal Agarwalla (supra).
12. Learned counsel for the respondents catching at the last straw argued
that even if the loan was casual and a stray one, it had been advanced on interest and, therefore, it should be held that it came within the purview of the new Act. This submission has been noticed merely to be rejected for the grounds mentioned in the judgment of McCardie, J. in the case of Edgelow v. MacElwee (1918) 1 KB 205 approved by
a Bench presided over by Harries, C. J. and quoted with approval by Ramaswami, C. J. in the case of Dwarkadas Marwari (supra) wherein this point had been distinctly discussed as will be found from the passage extracted above and the phrase underlined by us.
13. We are, accordingly, constrained to hold that the decision of the learned single Judge in the case of Newalal Rai (supra) does not lay down a correct proposition of law and has to be overruled, only more so since the bar of non-maintainability of the suit on the ground of the plaintiff being not a registered money-lender had never been canvassed in the two courts of facts below nor had it been pleaded. Such a defence must be pleaded in the pleadings. Be that as it may, in so far as the maintainability of the suit is concerned, the old law still holds goods, in spite of few changes in the wording here and there.
14. The appeal is, accordingly, allowed and the judgment and the decree passed by the lower appellate court are set aside. There will, however, be no order as to costs.