Tuesday, 10 November 2015

Whether defendant can prove without filing written statement that plaintiff is professional money lender?


As regards the plea of the suit being barred by Money
Lenders Act, the learned Court below has categorically observed
that the appellant/defendant had failed to establish the said plea
by proving the fact that the plaintiff was a professional money
lender. Whether or not the suit filed by the plaintiff is barred under
Section 7-D of the Assam Money Lenders Act, 1934 would depend on the facts and circumstances of the case, if it is established that
the plaintiff had lent money in course of his business as a money
lender. Since the defendant had not contested the suit by filing
written statement, hence, there was no occasion for the defendant
to prove and establish the said fact by leading evidence. In that
view of the matter, the learned Court below had rightly rejected
the plea taken by the appellant as regards the suit being barred
under the Money Lenders Act.
 From the perusal of the decision of this Court rendered in the
case of Hem Chandra Chaudhury (supra) relied upon by Mr. Das, it
appears that the said judgment goes against the appellant in the
facts and circumstances of the present case as this Court had
categorically observed that the applicability bar of Section 7-D of
the Assam Money Lenders Act, 1934 cannot be considered in the
absence of any assertion in the written statement that the money
lent by the plaintiff was in course of his business as a money lender.
GAUHATI HIGH COURT
SMT RINA BALA DEVI V MD AHMAD ALI
RSA No.84 of 2015
CORAM;
 HON’BLE MR. JUSTICE SUMAN SHYAM
DATED;17.06.2015
AIR 2015(NOC)1096 GAU

1. Heard Mr. H. Das, learned counsel for the appellant.
2. Being aggrieved by the concurrent judgment and decree
dated 12.12.2014 passed by the learned Civil Judge, Goalpara in
Money Appeal No.1/2014 the defendant as appellant has
approached this Court by filing the instant Second Appeal.
3. The case of the respondent/plaintiff, in brief, is that the
plaintiff had advanced a loan for an amount of Rs.1,00,000/-
(Rupees One Lac) carrying interest at the rate of 10% per annum to
the defendant with an agreement to repay the same within six
months. There was an agreement entered by and between the
parties to that effect but despite the same the
appellant/defendant failed to repay the loan amount within the
stipulated period as a result of which the plaintiff/respondent had to
serve a pleaders notice upon the defendant demanding
repayment of the loan amount. Since the said pleaders notice
failed to evoke any response from the defendant, hence, the
plaintiff was compelled to institute Money Suit No.1/2011 in the
Court of Munsiff No.1, Goalpara praying for a decree for recovery
of the said amount along with interest as applicable.
4. Despite receipt of summons in connection with the
aforementioned Money Suit the defendant failed to submit her
written statement on time, contesting the case of the plaintiff. As
such, the suit proceeded ex parte against the defendant although
she was permitted to cross-examine the plaintiff’s witnesses.
5. The plaintiff’s side examined as many as 6 witnesses who
were duly cross-examined by the defendant. The plaintiff had also
produced documentary evidence.
6. On the basis of the pleadings contained in the plaint the
learned Court below had framed certain points for determination
which are as follows :-
“1. Whether there is a cause of action for the suit?
 2. Whether the suit is maintainable in its present form and
manner?
 3. Whether defendant had taken loan of Rs.1,00,000/-
(one lakh) with 10% interest per month from the
plaintiff?
4. Whether plaintiff is entitled to any relief prayed for?
5. To what other relief(s) the parties are entitled?”
7. During the course of trial the plaintiff’s side had produced the
agreement marked as Ext-1 bearing the signature of the defendant.
All the witnesses examined by the plaintiff supported his case to the
effect that the defendant had, in fact, taken the loan amount from
the plaintiff. During the cross-examination of the plaintiff’s witnesses
the defendant could not dislodge the evidence brought on record
by the plaintiff. On the basis of the oral testimony as well as the
document exhibited in the form of Ext-1 (loan agreement), duly
proved by the plaintiff, the learned Court below recorded a finding
to the effect that the amount of Rs.1,00,000/- (Rupees One Lac)
was taken by the defendant as loan from the plaintiff by executing
Ext-1 which the defendant failed to repay. On the basis of such Page 3 of 4
concurrent finding of fact the Court below decreed the suit filed by
the plaintiff/respondent.
8. Mr. Das, learned counsel for the appellant, submits that the
appellant could not file her written statement on time due to
negligence of her counsel and not due to any latches or
negligence on her part. He further submits that the learned Court
below failed to consider the fact that the suit of the plaintiff was
itself barred by the provisions of the Assam Money Lenders Act,
1934. In support of his argument he relied upon a decision of this
Court reported in 2008 (Suppl) GLT 664 [Hem Chandra Chaudhury
vs. Hahi Ram Bora]. It may be the case that the written statement
could not be filed due to the negligence on the part of the learned
counsel appearing for the defendant. Even if that be so, the
defendant did have the opportunity to approach the higher forum
against the order by which she was debarred by the trial Court from
filing the written statement. Admittedly, no such attempt was made
by her despite the fact that she had ample opportunity of doing so.
There is nothing on record to show that any complaint was made
against the learned Advocate, who had allegedly failed to file the
written statement on time despite proper instructions from the
defendant. In view of the above, it is not possible to accept the
submission made by Mr. Das that the defendant was vigilant about
her rights but could not protect the same due to negligence of her
lawyer.
9. As regards the plea of the suit being barred by Money
Lenders Act, the learned Court below has categorically observed
that the appellant/defendant had failed to establish the said plea
by proving the fact that the plaintiff was a professional money
lender. Whether or not the suit filed by the plaintiff is barred under
Section 7-D of the Assam Money Lenders Act, 1934 would depend 
on the facts and circumstances of the case, if it is established that
the plaintiff had lent money in course of his business as a money
lender. Since the defendant had not contested the suit by filing
written statement, hence, there was no occasion for the defendant
to prove and establish the said fact by leading evidence. In that
view of the matter, the learned Court below had rightly rejected
the plea taken by the appellant as regards the suit being barred
under the Money Lenders Act.
10. From the perusal of the decision of this Court rendered in the
case of Hem Chandra Chaudhury (supra) relied upon by Mr. Das, it
appears that the said judgment goes against the appellant in the
facts and circumstances of the present case as this Court had
categorically observed that the applicability bar of Section 7-D of
the Assam Money Lenders Act, 1934 cannot be considered in the
absence of any assertion in the written statement that the money
lent by the plaintiff was in course of his business as a money lender.
11. In view of what has been discussed herein before, this Court is
of the opinion that no substantial question of law arises for decision
in this case. The concurrent finding of facts recorded by both the
Courts below appears to be based on evidence on record and
therefore, I do not find any infirmity in the conclusions drawn by the
Court below.
In the result, this Second Appeal stands dismissed.
 JUDGE
TUC
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