JUDGMENT
Lalit Mohan Sharma, J.
1. The plaintiff-appellant has filed this suit for a money decree amounting to Rupees 31,997.50 paise on the basis of two hand-notes dated 19-6-1960 and 7-4-1961 executed for Rs. 15,000/- and Rs. 10,000/-respectively. According to his case, all the seven defendant’s are members of a Hindu joint Mitakshara family with the defendant No. 1 as the karta. The family of the defendants has been carrying on contract business and defendant; No. 1 borrowed a sum of Rs. 15,000/- on 19-6-1960 for the purposes of the business. The interest was fixed at one per cent per mensem. Subsequently on 7-4-1961, the defendant No. 1 obtained another loan of Rs. 10,000/-. The entire family of the defendants being interested in the business, is said to be bound by the transactions. In spite of demand, the dues have not been paid off. The plaintiff has, on these allegations, filed the suit and has mentioned the account of his claim in the plaint.
2. The Genealogical table included in the plaint indicates that one Indrajeet Prasad Tiwary left behind four sons, namely, Bir Prasad Tiwary who was the father of defendants 1 to 4, Lal Prasad Tiwary, father of defendant No. 5, Ambika Prasad Tiwary (Defendant No. 6) and Sarjug Prasad Tiwary (Defendant No. 7). Surya Prasad Sharma (Defendant No. 1) is the eldest son of Bir Prasad Tiwary.
3. Separate written statements were filed by defendants 1, 5, 6 and 7. Defendants 5 to 7 have pleaded that all the defendants are separate and the plaintiff’s allegations of their jointness and defendant no, 1 being the karta are incorrect. It has also been stated that the family, at no point of time, was interested in the contract business or in any kind of business. The family has been interested in cultivation. It has been emphatically denied that any money had been borrowed by or on behalf of the family of the defendants.
4. The defence of defendant No. 1 is, in brief, as follows: In 1950, defendant No. 1 started the contract business, but the members of his family refused to contribute any money. As his determination to start contract business was strong, he decided to raise money by contracting loans and borrowed different amounts of money from the plaintiff from time to time by executing hand-notes. The plaintiff used to realise rent at the rate of 2 per cent per mesnem. During the period September, 1950 to May, 1957, defendant No. 1 borrowed a total sum of Rs. 39,130/-from the plaintiff in several instalments and paid back a sum of Rs. 53,000/-. On the 19th June, 1960, the plaintiff calculated the amount due from defendant No. 1 on the basis of his account books and told the defendant “that some amount was due by him”. The plaintiff was threatening to file a suit. “After too much of persuasions, he remitted a little, and got two hand-notes one for Rs. 15,000/- and the other for Rs. 10,000/-, and two receipts also executed on the same day, at one time, and in one sitting on 19-6-1960. But the plaintiff got two dates i.e. 19-6-1960 and 7-4-1961 mentioned on the two hand-notes and the two receipts.” Proceeding further, in paragraph 13 of the written statement, it is stated that the accounts prepared by the plaintiff were on the basis of the compound interest at 2 per cent per mensem which was illegal. It has been suggested that calculations could be made by Court from the beginning on the basis of simple interest at 1 per cent per mensem and orders for adjustment may be made. It is further pleaded that “on perusal of the account of interest at 2 p, c. p. m. it will be manifest that till 19-6-60, a sum of Rs. 6414-8-0 comes out to be due to the plaintiff by this defendant, and on perusal of the account of interest at 1 p.c. it will be manifest that till 19-6-60. the
plaintiff has taken from this defendant Rs. 13,204-14-0 as surplus money.”
5. In substance, defendant No. 1 denied having not taken any money on 19-6-1960 and 7-4-1961. The hand-notes are said to have been executed under coercion and undue influence. Defendant No. 1 also referred to his annual diaries in support of his case.
6. Parties led evidence in support of their respective cases. The court below ultimately came to the conclusion that the plaintiff has not been able to prove satisfactorily that he had paid the amounts covered by the hand-notes, which have been marked as Exts. 1 and 1 (a) or the receipts Exts. 2 and 2 (a). The court overruled the defence plea that defendants 1 to 7 were not members of a Hindu joint family, but held that defendant No. 1 was not the karta. It has also been found that the contract business for which the moneys are said to have been borrowed was not the ancestral business of the family and it was a new business started by defendant No. 1 with which the family had no concern. Defendants 2 to 7 on these findings have been held not to be bound by the hand-notes at all. The suit was accordingly dismissed against all the defendants. The plaintiff has appealed.
7. Mr. K. D. Chatterji, learned Counsel appearing for the appellant has contended that the learned Subordinate Judge after referring to Section 118 of the Negotiable Instruments Act has erroneously failed to draw the presumption in favour of the plaintiff. In substance, his finding is that the burden of proving the passing of consideration rested on the plaintiff which has not been discharged. There appears to be considerably force in the argument. Although in paragraph 11 of the judgment, the court rightly referred to Section 118 of the Negotiable Instruments Act, but after dealing with some of the circumstances, the learned Subordinate Judge In paragraph 20 of the judgment refused to raise the presumption in favour of the plaintiff. However, as both sides have led their evidence on the controversy, the question of burden appears to be academic.
8. The plaintiff has filed the hand-note executed by defendant No. 1 on the 19th June, 1960 (Ext. 1), the receipt of that date (Ext. 2), the second hand-note dated 7-4-1961 (Ext. 1 (a) ), and the second receipt of the same date (Ext. 2 (a) ). The execution of these documents has not
been denied by defendant No. 1. He has examined himself as D.W. 12. The plaintiff has also examined 11 witnesses including himself. The learned Counsel for the appellant has relied upon the evidence of the plaintiff’s witnesses 1, 2, 3, 5, 6 and 11.
9. Ramashish Singh (P.W. 1) is a resident of village Loksa at a distance of one mile from the town of Motihari where the plaintiff lives. He appears to be a man with substantial properties having 15-16 bighas of ancestral lands (Bigha in Champaran district is bigger than acre). He visits the house of the plaintiff for taking straw etc. He has proved the hand-note (Ext. 1) and the receipt (Ext. 2) and the fact that a sum of Rs. 15000/- was actually paid by the plaintiff. Defendant No. 1 has been asserting that the plaintiff maintained account books and if the same were produced, they would disprove the plaintiff’s claim. It is also said that on the basis of these books, the plaintiff calculated the amount as due from defendant No. 1 and demanded payment. P. W. 1 has denied the suggestion regarding the consultation of any account book at the time of the payment of money for the execution of the hand-note. There does not appear to be any reason to discard the evidence of this witness. The next witness Durbij Mian (P.W. 2) lives near plaintiff’s house. Besides doing cultivation work, he has been interested in the business of purchasing and selling fruits. He had supplied 700 green mangos to the plaintiff and had gone to the plaintiff’s house. He has also satisfactorily proved the execution of Exts. 1 and 2 and payment of a sum of Rs. 15000/-.
10. The plaintiff has examined P.Ws. 3, 5 and 6 to prove the execution of Exts. 1 (a) and 2 (a) and payment of Rs. 10000/- by the plaintiff to defendant No. 1. P.W. 3 Karim Mian and P. W. 5 Madhau Mian live in the vicinity of the plaintiff’s house, Karim Mian had gone to the plaintiff’s house for purchasing paddy at the time the transaction was taking place. He has denied the suggestion that he is also a debtor of the plaintiff. He stated that there was no bah! khata at that place. He has been supported by P. W. 5 who has denied the suggestion that he was servant of the plaintiff and was also his debtor. P. W. 6 Makchhed Mehto stated that defendant
No. 1 worked as a contractor and took a sum of Rs. 10000/- in cash from the plaintiff in his presence and executed hand-note and a receipt. He claimed to be a servant of Bhagwan Das with whom the plaintiff had got certain transactions in connection with which the witness had to go to the place of the plaintiff. P. W. 5 has spoken about the presence of P.Ws. 5 and 6 at the time of the transaction. Learned Counsel for the respondent pointed out a discrepancy in the evidence of P.Ws. 5 and 6. P.W. 5 stated that P. W. 6 had gone to the house of the plaintiff on a rickshaw while P. W. 6 said that he went there on foot. They were deposing in 1966 while the transaction is said to have taken place in 1961, I do not consider the aforesaid discrepancy so material as to render their evidence unreliable. I have gone through the depositions of P.Ws. 3, 5 and 6 and I feel satisfied that they are truthful.
11. P.W, 9 Mohammad Hazique is a contractor and stated that defendant Surya Prasad was doing the contract business since before 1934 and that the plaintiff enquired from him (the witness) about the advisability of advancing a loan to the plaintiff. This witness has been criticised by the learned Counsel for the respondent on the ground that it has not been satisfactorily established that defendant No. 1 was doing business since before 1934 and that at the time of enquiry by the plaintiff from the witness, the defendant had got a contract of construction of syphon from P.W.D. This evidence, however, does not appear to be of great consequence inasmuch as it is the admitted case of the defendant that he has been doing contract business and took loans from time to time from the plaintiff. The plaintiff examined himself as P.W. 11 and supported the entire case. However, as he is naturally very much interested in establishing his case, his evidence cannot carry great weight. But his other witnesses, namely, P.Ws. 1, 2, 3, 5 and 6 appear to be reliable.
12. Mr. Thakur Prasad, learned Advocate for the respondents has contended that from the evidence on the record, it is established that defendant No. 1 received substantial amounts of money in the early months of 1961 leading to the conclusion that he was not in need of contracting loan. It is also said that on the 7th April, 1961, when the hand-note Ext. 1 (a) is said to have been executed. Surya Prasad was at Bettiah and, therefore, could not have been at
Motihari to execute the hand-note and to receive the money from the plaintiff. The reason why the defendant had to execute the hand-notes and receipts without receiving any money is said to be undue influence and coercion exercised by the plaintiff on him. It has also been said that as the plaintiff has failed to produce in Court his account books supporting the transactions, the suit should be dismissed.
13. The receipt of substantial amounts of money by defendant No. 1 has been proved by the production of certain documents by Accounts Clerk in the Don Canal Division, Champaran, who proved the entries Exts. A to A (4). They have come from the office of the Executive Engineer. The Accounts Clerk (D.W. 1) has stated that defendant No. 1 had taken contract of excavation of canal. The entries indicate that some amounts were paid to one Surya Prasad Sharma. The registers do not give the parentage or the residence of the contractor and it has, therefore, been suggested on behalf of the plaintiff that the entries should not be held to refer to defendant No. 1. However, assuming that on the evidence of D. W. 1 and D. W. 12 (defendant No. 1) it is proved that several amounts of money were paid to defendant No. 1 in 1961. The next question is as to what inference can be drawn therefrom. In the first instance, the entries Exts. A series have not been fully explained to us by Mr. Thakur Prasad. Each of these entries indicates small amount of money having been paid in cash and thereafter a cheque is mentioned followed by a larger amount of money. If all these payments mentioned in all the documents are added up, they exceed Rs. 27000/-. As I have said above, I assume that the defendant’s case is correct that he received these amounts from April to May in 1961. But that does not by itself indicate that defendant No. 1 was not in need of more money. On his own showing, he was doing contract business and unless it could be indicated that the entire need of the defendant for running his contract business was covered by the said amounts, it cannot be said that there was no occasion for him to borrow money from the plaintiff. Besides filing certain diaries, which do not mention investment and expenditure in the contract business, the defendant has not produced his other account books. It is not denied that in the contract business of the nature in which defendant
no. 1 has been interested, a large amount of money is required. I am, therefore, not satisfied that defendant No. 1 has proved that there was no occasion for him to take a loan in 1961. It must be observed that the defendant has not attempted to make out such a case in regard to the hand-note of 1960.
14. The defendant stated that on the 7th July 1961, he was at Bettiah and therefore, could not have executed the hand-note Ext. 1 (a) at Motihari. Reliance has been placed on Ext. B which is an extract from a register of the State Bank of India, Bettiah branch. The document indicates that one Surya Prasad Sharma had cashed a cheque in Bettiah on that date. The defendant (D.W. 12) has claimed that in the evening of 6th April, 1961 he had left Motihari for Ramnagar by train. On 7th April, 1961 he was at Kam-nagar and Bettiah during the day and returned back to Motihari at 7 P.M. He has produced several diaries for showing that no money was received by him from the plaintiff on 19-6-1960 and 7-4-1961. He was cross-examined on the point whether he was at Motihari or not and reference was made in this regard to the relevant diary. From the relevant entries in the diary as well as the statement of the defendant recorded in paragraph 24 of his deposition, it becomes apparent that his case that he was out of Motihari till about 7 P. M. in the evening is not correct. It will be borne in mind that the distance of Bettiah from Motihari is only 28 miles and the two towns are connected by very good road on which regular buses and taxis are running throughout the day. It was, therefore, not unpractical or difficult for the defendant to have cashed a cheque at Bettiah the same day on which he received the sum of Rs. 10000/- from the plaintiff at Motihari and executed the hand-note and receipt.
15. Mr. Chatterji has placed great reliance on the hand-notes and the receipts executed by defendant No. 1 and contended that not only a presumption in favour of passing of consideration arose in favour of the plaintiff’s case under Section 118 of the Negotiable Instruments Act, but recitals in these documents constitute important admissions on the part of defendant No. 1 which must be presumed to be correct unless satisfactorily explained by him. Mr. Thakur Prasad, appearing for the defendant, has not challenged these propositions and,
to my mind, rightly, but has argued that the facts and circumstances of the case placed by the defendant fully explained the execution of these documents without payment of any money. He has strongly relied on the diaries filed by the defendant and the evidence of D.Ws. 3 and 6 and the defendant himself,
16. The defence in this regard is to be found in paragraphs 12 and 13 of the written statement which have been referred to above. Both the hand-notes are said to have been executed on 19-6-1960. On this date, according to the accounts of the plaintiff, calculated on the basis of illegal exorbitant rate of interest at 24 per cent per annum, a sum of Rs. 6414/8/- was found due to the plaintiff from the defendant. Let us assume that this part pf the story is correct, but this cannot explain the conduct of the defendant in agreeing to execute two hand-notes covering a sum of Rs. 25000/-. If under the threat of a suit, the defendant agreed to execute a hand-note without consideration, the same could have been executed for Rs. 6414/8/- or to have a round figure for Rs. 6500/-. If the case of the defendant and the evidence of his witnesses that the plaintiff was charging illegally double rate of interest be assumed to be correct the defendant could have been asked to execute a hand-note for a sum of Rs. 13000/-. But there does not appear to be any explanation on the record for executing the hand notes for a total sum of Rs. 25000/-. When the difficulty in explaining the circumstance on the basis of aforementioned plea was realised, two witnesses were examined on behalf of the defendant, namely, D.Ws. 3 and 6 who stated that on consulting bahikhatas, the plaintiff calculated the dues at about Rs. 27000/- or Rs. 28000/-. The evidence of the defendant himself is not very helpful on this point. Jaimangal Singh (D.W. 3) and Yadu Lal Sah (D.W. 6) do not by their evidence inspire confidence. Jaimangal Singh claims to be doing contract business, but it has been suggested to him that he is a professional karpardaz in Motihari court. He claimed that P.W. 1 Ramashish Singh is his mother’s brother, but in paragraph 6 of his evidence, he stated that his mother’s father was Bhagat Singh, Ramashish Singh stated that his father’s name was Gokhul Singh. It was not suggested to him that Jaimangal Singh was his bha-gina and was present at the place of the plaintiff at the time of execution of the hand-notes. The claim of Jaimangal Singh
that he went to the plaintiff’s place for taking a loan and remained sitting there quietly for two hours when he watched the negotiation between the plaintiff and defendant No. 1 is unnatural. His statement in paragraph 8 is not quite consistent with the allegations in the plaint in paragraph 13. It appears that Jaimangal Singh was thought of as a witness to prove the defence case after the examination of Ramashish Singh was over. The other witness Yadulal Sah also made statement similar to D. W. 3. It was not puttoP. Ws. 1, 2 or 11 that Yadulal Sah was in the house of the plaintiff when the two hand-notes were executed. The evidence of both D. Ws. 3 and 6 are far from satisfactory and must be rejected.
17. It has also been stated in paragraph 13 of the written statement that on calculation of the interest at one per cent per annum on the amount actually borrowed by defendant No. 1 the plaintiff had already realised before 19-6-1960 a surplus amount of Rs. 13204/14/-. It this case be accepted as correct, there was no reason for the defendant to be afraid of so as to execute two further hand-notes without receiving any money. Defendant No. 1 is not parda-nashin lady or ignorant, illiterate and simpleton who would be overawed by the attitude of a creditor, without any reason therefor. He can speak and write Hindi as well as English and has been doing contract business on his own case, since 1950. He also paid income tax for a few years. Although he has denied of being interested in money lending business, he admitted that he had instituted a suit for realisation of certain money which he had lent on the basis of a hand-note to another person. The records of that money suit have been produced in this case. He had stated there (as admitted by him in the suit) that he did not maintain any bahi khata. The defendant must, therefore, be held a wordly wise man not expecting to succumb to the threats of the plaintiff without any impending danger. The entire evidence and circumstances relied upon by the defendant appear to be wholly unsatisfactory and do not explain the admissions made by him in the hand-notes and the receipts.
18. The diaries have been marked as Exts. E series. The court below accepted them as genuine. During the course of the argument, we attempted to understand the accounts mentioned in them
with the assistance of the learned Advocates. However, Mr. Thakur Prasad appearing for defendant No. 1, could not analyse it so as to show that the same was either consistent with the statements made in paragraphs 12 and 13 of the written statement or with the evidence of D.Ws. 3 and 6. I also do not agree with the view expressed by the court below in paragraph 22 of the judgment that there is nothing important to point out that the entries made in the diaries have not been made correctly. Admittedly, the expenses incurred by the defendant on 20th August, 1951, in connection with M.S. 378 of 1951 are not mentioned in the diary. I am not satisfied with the explanation mentioned in the judgment Similar is the (position in regard to the expenses incurred by the defendant in connection with other money suits filed by him. The defendant had also lent a sum of Rs. 500/- to one Mathura Rai in 1956 and had filed a suit in 1959 for realisation thereof. In paragraph 25 of his present deposition, he admitted that it is not mentioned in his diary that he had lent the sum to Mathura Rai. In order to explain this discrepancy, he has stated as follows:–
“…..In Suit No. 214/59, I stated about lending Rs. 500/- to Mathura Rai on 16-5-1956. but it might be that some body else in my name might have lent Rs. 500/- to Mathura Rai. It is a fact that I stated in course of deposition in Suit No. 214/59 that I lent that sum of Rupees 500/- to Mathura Rai out of his (sic) my own pocket. That amount belonged to Gulab Raut which was lent to Mathura Rai in my name. I received from Gulab Raut the entire cost met by me in the suit. Such amount might possibly be found deposited in the name of Gulab Raut in my diary. I am unable to prove from my diary that I received the cost from Gulab Rai.”
The explanation attempted by the witness appears to be quite unsatisfactory. The diary does not appear to have been written in due course of business. Based upon them, a detailed account has been appended to the written statement. During the arguments we also tried to understand the same. Column 1 indicates different amounts of money borrowed by defendant No. 1 from the plaintiff and column 2 shows payments made to the plaintiff: According to this account, different amounts were received by the
defendant from time to time during the period 31st August, 1950 to the 22nd March, 1957 and payments were made from 20th June, 1951 to 25th October. 1959. In 1957, it appears that a sum of Rs. 2000/- was borrowed on the 30th January, 1957 and three amounts in February, and during the same month, that is, February, 1957, two payments were made to the plaintiff. Similar is the situation in the earlier years also. It does not appear quite natural as to why the defendant was borrowing from the plaintiff at the same time When he was in a position to make payments. The accounts mentioned in the written statement and printed at pages 7 to 13 of the paper-book are consistent with the statements made in paragraphs 12 and 13 of the written statement, but are incompatible with the evidence led by the defendant at the trial. We have also examined the original diaries, which have been exhibited, carefully. On a consideration of the entire evidence and circumstances, I am of the view that the entries in the diaries have been made for the purpose of inventing a defence in the suit and do not disclose correct state of affairs. It has been strenuously contended on behalf of the defendant that adverse inference must be drawn against the plaintiff for non-production of the accounts books. The Bihar Money Lenders Act, 1938, enjoined the creditor to regularly maintain accounts of his money lending business. It has been suggested that the plaintiff must have kept the accounts which fact is also proved by the defendant’s witnesses and if those accounts were produced in the suit, they would have supported the defence. The plaintiff has said that he did not maintain any accounts. The evidence of the witnesses for the defendant, who stated that they saw the plaintiff consulting Khata-Bahi on the 19th June, 1960 has already been discussed above and rejected as untrustworthy. The plaintiff’s witnesses who have stated that there were no bahis at all at the place where the hand-notes were being executed by the defendant appear to be more reliable. The defendant has not placed any other material for proving that accounts books were actually maintained by the plaintiff. Mr. Thakur Prasad urged that it cannot be accepted that persons doing money lending business in Bihar did not maintain account books in violation of the provisions of 1938 Act. This argument is not perfectly sound. Quite a large number of money lenders were not keeping
account books as will be apparent from the records of the cases coming to Court and this was one of the reasons that in the new Bihar Money Lenders Act, 1964, special provision has been made for dismissing a suit for realisation of money lent in case where the accounts are not now kept. From the evidence on the record, it is clear that defendant No. 1 himself has been lending moneys and filing suits for their realisation without maintaining account books. It is, therefore, a question of evidence as to whether account books were kept by the plaintiff or not and I hold that the evidence of the plaintiff on this point is superior and fit to be accepted.
19. On considering the entire evidence and circumstances in this case, I am of the view that the evidence led by the plaintiff is reliable and that on behalf of the defendant is untrustworthy and defendant No. 1 has not been able to explain as to why he executed the hand-notes and receipts without receiving any money therefor, I accordingly hold that the plaintiff has established that a sum of Rs. 15000/- was paid by him to defendant No. 1 on 19-6-1960 and another sum of Rs. 10000/- on 7-4-1961.
20. On behalf of the plaintiff, the finding of the court below that defendant No. 1 is the karta of the joint family of defendants 1 to 7 and defendants 2 to 7 cannot be made liable for debts has also been challenged. Reliance was placed on the evidence of the plaintiff (P.W. 11) in paragraphs 1 and 4 of his deposition. The statements amount to the opinion formed and expressed by the plaintiff about defendant No. 1 being the Karta. In answer to questions put to him in cross-examination on behalf of defendants 5, 6 and 7, he stated that the home affairs were managed by order of defendant No. 1 and other members of the family took his advice in doing any work. He said that he was so stating as in his presence the members of his family enquired from defendant No. 1 as to how cultivation work should be done and how the money lending business should be managed. Although other parts of the deposition of this witness appears to be truthful. I am not sure that his statement on this question, referred to above is also correct. Besides, the fact that on several occasions the advice of defendant No. 1 was sought for by other members of the family does not conclusively establish that defendant No. 1 was the karta. Defendants 6 and 7 are uncles of
defendant No. 1 and are admittedly senior members of the family and it is not likely in the usual course that defendant No. 1 would be the karta of the family in preference to his uncles. Defendant No. 5 Ram Narain Prasad Tiwary has deposed in the case as D.W. 9 and has asserted that defendant No. 1 was not the karta of the joint family at any point of time and that a partition took place in the family 16-17 years earlier. He also stated that the joint family was never interested in any kind of contract business nor was any other member of the family so interested excepting defendant No. 1. In cross-examination, he stated that after the partition, the parties are living separately in different houses. The defendant No. 1 is said to be living in Motihari town. This fact was accepted by Mr. Gupteshwar Prasad, Advocate, for the plaintiff also. It appears from the records of the case that other defendants are residing in village Majirwa within Chorasahan Police Station. Defendant No. 2 also has been examined as D.W. 7 and has supported the case made out by him in the written statement. In paragraph 5 of his deposition, he has given details of the properties which were partitioned between the parties. Similar is the evidence of D.W. 10 (defendant No. 3). D.Ws. 7, 9 and 10 appear to be speaking the truth about the separation in the family. They also established that the contract business is the separate personal business of defendant No. 1 in which none of the other defendants is interested. The family of the defendants at no point of time appears to have been involved in anv contract business. The plaintiff has relied upon large number of entries in several registers maintained by the District Board, Motihari which on being called for. were produced by the Board through its clerk P.W. 4. The entries in the Contractor’s Ledger have been marked as Exts. 3 series and those in the Register of Bills as Exts. 4 series and they mentioned the name of the contractor as Saryug Prasad Sharma. It is suggested on behalf of the plaintiff that these entries referred to defendant No. 7 Saryug Prasad Tiwary and they proved that the entire family has been doing contract business for a long time. The defendants have seriously challenged these entries as referring to defendant No. 7. Excepting similarity in the name, there is no other satisfactory evidence to connect the entries to defendant No. 7. In the registers, neither the name of the father of the
contractor nor his residence has been mentioned. The last name also differs while defendant No. 7 is Tiwary, the registers describe the contractor as Sharma, It is significant to note here that even in the plaint, the plaintiff did not describe defendant No. 7 as Sharma. I am, therefore, satisfied that the plaintiff has not been able to prove that the entries Exts. 3 series and 4 series referred to defendant No. 7.
21. On a consideration of the entire facts and circumstances, I hold that the defendants separated each other before I960 and were not members of a joint family when defendant No. 1 borrowed the two amounts of Rs. 15000/-and Rs. 10000/- from the plaintiff. I also hold that defendant No. 1 was not the karta of the family during its jointness at any point of time. The evidence has also established that the contract business is the personal business of defendant No. 1 for which he took loans and none of the defendants or the family is at all concerned either with the contract business or with the loans. It must, therefore, be held that defendants 2 to 7 are not liable for the loans in question and the suit as against them must be dismissed.
22. The last point urged on behalf of the defendants is that the suit is not maintainable in view of Sub-section (5) of Section 7 of the Bihar Money Lenders Act, 1974 (Bihar Act 22 of 1975) (hereinafter referred to as ‘the Act’). This Act was passed by the legislature of the State of Bihar and thereafter received the assent of the President of India on the 20th March, 1975. Sub-section (3) of Section 1 of the Act indicates that it came Into force at once.”
23. The present suit was filed in 1963 and after disposal of the same by the trial court, this appeal was filed in 1966. The matter which is being covered by the Act was earlier governed by the provisions of the Bihar Money Lenders Act, 1938 and Bihar Money Lenders (Regulation of Transaction) Act, 1939, which have been repealed by Section 48 of the present Act. Under the earlier law, the money lender was directed to maintain a proper account of his money lending business and there was a further provision providing punishment on a wilful contravention. Section 7 (1) of the present Act similarly directs the money lender to maintain proper accounts in respect of every loan advanced after the commencement of the 1938 Act, and Section 34 of
the Act states that if any person wilfully contravenes any of the provisions of this Act, he shall be punished. Sub-section (5) of Section 7 of the Act, which has been relied upon by the defendants-respondents, reads as follows:
“7 (5) A money lender shall in a suit for recovery of money advanced by him as loan file a copy of the relevant extracts from his register of accounts relating to the said loan and he shall not be entitled to maintain any claim beyond the entries made in his register of accounts.” There was no such provision under the earlier law. Under the old law, therefore. the suit cannot fail for non-maintenace of accounts. The question is as to what is the effect of the new Act on the present litigation.
24. Mr. Thakur Prasad contended that the new Act is retrospective in operation and as the plaintiff has not maintained any account and consequently could not file a copy of the relevant extracts from such an account, this suit must be dismissed. The argument is that the term ‘suit’ includes an appeal as is indicated by the definition of the term in Section 2 (q) which is in the following terms and, consequently, therefore, Section 7 (5) must be applied to this appeal:
“2 (q) ‘Suit’ includes any proceeding taken for the recovery of a loan before the Anchal Adhikari, any Officer deciding a dispute arising out of the provisions of this Act, a Certificate Officer under the Bihar and Orissa Public Demands Recovery Act, 1914 or any person exercising the powers and performing all or any of the functions of an Anchal Adhikari, a Collector or a Commissioner under this Act and also includes an appeal.”
He has urged that even if the language in a statute does not state expressly that it has a retrospective operation, it can have retrospective operation, if such an inference flows by necessary implication.
25. The Act states in Section 1 (3) that it came into force on the date it became law. A statute is deemed to be retrospective which takes away or impairs, any vested right acquired under existing law, or creates a new obligation, or imposes a new duty, or attaches a new disability in respect of past transactions, but "is not properly called a retrospective statute because a part of the requisites for its action is drawn from a time antecedent to its passing." (See R. v. St. Mary (1848) 12 QB 120, 127.) It is also well established that a statute should not be construed so as to have a retrospective operation unless its language is such as plainly to require such a construction; and further that a statute should not be construed to have a greater retrospective operation than its language renders necessary. This principle originally discussed by English Judges has been recognised in India. In Gardner v. Lucas, (1878) 3 AC 582, 601. it was observed that unless there is some declared intention of the legislature--clear and unequivocal --or unless there are some circumstances rendering it inevitable that other view should be taken, the presumption is that an Act is prospective and not retrospective. In all cases, it is always desirable to ascertain the intention of the legislature and that can b,e done only through the language of the Act. If the language is clear and unambiguous, there is no difficulty, because it cannot be suggested that the legislature is not entitled to pass retrospective statute affecting vested rights. But the difficulty arises when the language is not plain. After dealing with the presumption that an Act should generally be construed to be prospective in operation, Craies on Statute law states that even in construing an Act which is to a certain extent retrospective and in construing a section which is to a certain extent retrospective, we ought, nevertheless, to bear in mind that the maxim "Omnes nova constitutio futuris temporibus formam imponere debet non praeteritis" -- that is, except in special cases, the new law ought to be construed so as to interfere as little as possible with vested rights, should be applied whenever we reach the line at which words of the section cease to be plain. This follows as a necessary and logical corollary of the general proposition that a larger retrospective operation should not be given to a section or to an Act than the extent intended by the legislature. Let us now consider the provisions of the present Act in this light. 26. The question of retrospectivity of the Act can be divided into three classes, namely, (a) whether the Act governs the transactions entered into before the commencement of the Act but the suit is filed after its commencement, (b) whether the Act applies to the suits which are pending in the trial court and (c) whether the provisions of the Act govern a suit which was pending in appeal on the date of Its commencement. It is not necessary to decide the first
two questions in the present appeal. It is also not essential to deal with the question relating to the applicability of the entire Act. Reliance has been placed by Mr. Thakur Prasad on the provisions of Section 7 (5) of the Act and I propose to deal with the limited question, whether this provision is attracted in the present appeal. The copy of the relevant extracts from the register of account of a money lender can be filed in a suit by way of evidence. The stage where evidence is recorded in a litigation is the trial stage. Only in special circumstances, which are enumerated in Rule 27 of Order 41 of the Code of Civil Procedure, additional evidence can be admitted. Unless, therefore, there should be some indication to the contrary given by the language, it must be assumed that the provision of Sub-section (5) is applicable to a suit pending in the trial court. By saying so I am not deciding that Sub-section (5) of the Act is applicable to a pending suit. I am merely assuming in favour of the defendants for the purpose of the third question enunciated above. If the legislature had intended to apply this section to a suit pending in appeal, if could have said so in clear words as in Section 11 (2) and Section 13 of the Act. A comparison of the language of Sections 7 (5), 11 (2) and 13 brings out the vital difference in their application. The relevant part of Section 11, Sub-section (2) of the Act is In the following language;
“No Court shall In any suit brought by a money lender before or after the commencement of this Act or in any appeal or proceedings in revision arising out of such suit pass a decree for…..”‘
Similarly, Section 13 Has been enacted in the following terms:
"13. Power of Court to re-open certain transaction--In any suit brought by a money-lender before or after the commencement of this Act or in any appeal or proceeding In revision arising out of such suit, the Court may exercise all or any of the following powers....." The language of Section 7 of the Act, as quoted above, is quite different. While the legislature has taken the precaution of mentioning an 'appeal' and 'revision' besides suit in Sections 11 and 13 of the Act, it has included in Section 7 (5) of the Act only the term 'suit'. This is a clear pointer of the intention that appeals are not covered by the purview of the sub-section. I am, therefore, of the view that the word 'suit' used in Section 7 (5) of the Act does not include appeal. It must, therefore, be held that the suit cannot fail on the ground of Section 7 (5) of the Act. 27. For the reasons stated above, I allow this appeal against defendant No. I, set aside the judgment of the Court below so far he is concerned and decree the suit against defendant No. 2 (Respondent No. 1). Besides the amount mentioned in the accounts attached to the plaint, the plaintiff will be entitled to pendente lite and future interest at 6 p.c. p.a. The plaintiff will get the costs of both courts from defendant No. 1. The appeal against the other defendants-respondents fails and is dismissed with costs. Birendra Prasad Sinha, J. 28. I agree.