IN THE GAUHATI HIGH COURT. Case No: RSA 234/2015

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1 IN THE GAUHATI HIGH COURT (The High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh) Case No: 1. Shri Manik Chakraborty S/o late Bijoy Chakravorty R/o Rangapara Town, Ward No. 4, P.O. Rangapara, Dist. Sonitpur, Assam. -Versus- 1. Shri Jiten Ch. Das S/o Shri Monoranjan Ch. Das, Rangapara Town, Ward No. 4, P.O. Rangapara, Dist. Sonitpur, Assam. Appellant... Respondent -BEFORE- HON BLE MR. JUSTICE N. CHAUDHURY For the Appellant : Mr. SP Roy Advocate For the Respondent : None Date of Hearing : Date of delivery of Judgment and Order : Page 1 of 5

2 JUDGMENT AND ORDER (ORAL) In this second appeal, the appellant has challenged the judgment and decree dated passed by learned District Judge, Sonitpur in money appeal No. 1/ To consider the admissibility of the appeal, it is necessary to discuss the relevant facts involved in the case. The respondent, as plaintiff, instituted money suit No. 33/1997 in the court of learned Civil Judge (Sr. Divn.) at Tezpur stating that the defendant was a Tax Consultant under the plaintiff and received a sum of Rs. 20,000/- in cash on with assurance to lend another sum of Rs. 9,000/- on this amount in the first week of November. The defendant accordingly executed a hand note in favour of the plaintiff on promising to repay Rs. 20,000/- along with interest at the rate of 10% thereon on demand. Plaintiff thereafter lent another sum of Rs. 9,000/- to the defendant on and on execution of a similar hand note to that effect. The defendant verbally agreed to repay the aforesaid amount of Rs. 29,000/- within one year with 10% interest per annum thereon but failed to do so. Under such circumstances, plaintiff instituted the suit for realisation of Rs. 37,550/- along with interest at the rate of 10% per annum on the decreetal amount from the date of institution of the suit till realisation. 3. On being summoned, the sole defendant appeared and submitted written statement denying the case of the plaintiff. The defendant took an additional plea that the suit of the plaintiff was barred under Section 7D of the Assam Page 2 of 5

3 Money Lenders Act, 1934 as the plaintiff does not have any licence to lend money. The learned trial court framed as many as 4 issues in the case which are quoted below:- 1. Is there any cause of action for the suit? 2. Is the suit maintainable in the present form? 3. Whether the suit is barred by limitation? 4. Whether the plaintiff is entitled to get a decree as prayed for? 4. In course of trial, plaintiff examined one witness and defendant also examined one witness. Upon consideration of the materials available on record, the learned trial court by judgment and decree dated decreed the suit of the plaintiff for Rs. 37,550/- along with interest at the rate of 6% per annum on the decreetal amount w.e.f. the date of institution of the suit till realisation. This judgment and decree passed by the learned trial court was challenged in money appeal No. 1/2002 before the learned District Judge at Tezpur. The learned first appellate court by judgment and decree dated dismissed the appeal. Aggrieved, the defendant preferred a second appeal before this court being RSA No. 24/2004. This court by judgment and order dated allowed the appeal and remanded the matter to the learned first appellate court to decide as to whether suit of the plaintiff was maintainable in view of provision of section 7D of the Assam Money Lenders Act, Upon receipt of records on remand, the learned first appellate court heard both sides and thereafter passed the impugned judgment and decree dated Page 3 of 5

4 dismissing the appeal again holding that provisions of Section 7D of the Assam Money Lenders Act, 1934 is not applicable to a case where the lender is not a money lender within the meaning of Section 2(1) of the Assam Money Lenders Act, In so doing, the learned first appellate court has considered earlier judgments passed by this Court in the case of Tezalpatty Tea (P.) Ltd. vs. Eastern Tea Brokers (P.) Ltd. reported in (2009 ) 5GLR 150 and in the case of Makhan Lal Deb vs. Barua Baru Bhar reported in (1984) 2 GLR 118. Learned first appellate court has also considered the judgment of this court in the case of Manmath Kumar Kar vs. Md. Sirat Ali reported in (1990) 2 GLR 141. The definition of money lender given in Section 2(1) of the Assam Money Lenders Act, 1934 shows that money lender within the meaning of the Act would mean a person who advances loan in regular course of business. Under such circumstances, to bring the suit within the purview of Section 7D, it was incumbent upon the defendant to show that the plaintiff was a regular money lender and that he had advanced loan to the defendant in regular course of his business. Not only the defendant failed to make any averment in his written statement to that effect and/or to bring any material on record, rather the plaintiff disclosed in his plaint that the defendant is none other than his own Tax Consultant and money was borrowed to him merely because of personal relationship. Considering all these aspects of the matter, the learned first appellate court has opined that provisions of the Assam Money Lenders Act, 1934 would not apply to the case in hand. Accordingly, the appeal has been dismissed. Page 4 of 5

5 5. I have heard Mr. SP Roy, learned counsel for the appellant. I have perused the plaint, the written statement, the judgment passed by the learned trial court and the two judgments passed by the learned first appellate court. Having gone through the same it appears that the finding in regard to lending money to defendant has been concluded on the earlier round of litigation when RSA No. 24/2004 was decided. The court remanded the matter only on the question as to whether provisions of the Assam Money Lenders Act would apply in the present case. Under such circumstances, the only point for consideration before the learned first appellate court was whether provision of Section 7D of the Assam Money Lenders Act, 1934 is applicable under the present facts and circumstances of the case. There being no averment from any side that the plaintiff was a regular money lender, the learned first appellate court has rightly held that the provisions of the Assam Money Lenders Act, 1934 do not apply in the case in hand. Such findings of the learned first appellate court do not appear to be vitiated by any error of law not to speak of any substantial question of law. Under such circumstances, there is no scope to admit the second appeal. It is accordingly, dismissed. Consequently, the decree passed by the learned trial court is upheld. BiswaS JUDGE Page 5 of 5

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