Subhro Kamal Mukherjee, J.@mdashThis is an appeal against judgment and decree dated September 4, 2006 passed by the learned Civil Judge (Senior Division), Second Court at Alipore, District South-24 Parganas in Money Suit No. 16 of 2004. The learned Judge by the impugned judgment and decree dismissed the said suit ex parte.
2. The Plaintiff instituted this suit for recovery of Rs. 2, 37,690/- (Rupees two lakh thirty-seven thousand six hundred ninety) only and for recovery of pendente lite interest and interest on Judgment.
3. The Plaintiff in his plaint contended that the Defendants were the next door neighbour of the mother of the Plaintiff and as such they were known to the Plaintiffs. The Defendants approached the Plaintiff for loan for the marriage of the youngest daughter of the Defendant No. l. The Defendant Nos. 2 and 3 were the sons of the Defendant No. l. The Plaintiff, at the instance of his mother, lent Rs. 98,000/- (Rupees ninety-eight thousand) only to the Defendants on or about September 17, 2002 at the residence-cum-office of the Plaintiff at 64, Sarat Bose Road, Kolkata. The Defendant No. l undertook to transfer some bastu land in front of the dwelling house of the Plaintiff in his native village or to transfer two bighas of agricultural land in favour of the mother of the Plaintiff towards the repayment of the loan. The Defendants agreed to pay interest at the rate of 18 (eighteen) per centum annually in case of their failure to transfer the land in favour of the mother of the Plaintiff. The Defendants took two years time to keep their commitment. The Plaintiff and his mother, on several occasions, asked the Defendants either to repay the money with interest or to transfer the land as agreed, but the Defendants did not pay any heed to their requests. Lastly, the mother of the Plaintiff went to the house of the Defendants asking for repayment, but she was insulted and threatened with dire consequences.
4. The Defendant No. l appeared in the suit, but ultimately did not contest the suit. The Defendant Nos. 2 and 3 in spite of service of the summons of the suit did not, also, contest the suit.
5. The learned Judge, however, dismissed the suit ex parte on two grounds. Firstly, the Plaintiff did not possess any licence for money-lending business. Secondly, there was No. notice for one month to the Defendants by the learned Advocate for the Plaintiff demanding repayment.
6. Being aggrieved the Plaintiff has come before this Court in appeal.
7. The short point in this appeal is whether the learned Trial Judge was justified in dismissing a suit for recovery of money lent and advanced on the ground that the lender had No. registration and licence as money-lender and that before institution of the suit No. notice was issued to the Defendants giving notice for one month?
8. Section 2(9) of the Bengal Money-Lenders Act, 1940, defines a lender as a person, who advances a loan and includes a money-lender. Section 2(13) of the said Act defines a money-lender. Money-lender means a person, who carries on business of money-lending in West Bengal or who has a place of such business in West Bengal, and includes a pawnee as denned in Section 172 of the Indian Contract Act, 1872. u/s 2(14) of the said Act, money-lending business and business of money lending mean the business of advancing loans either solely or in conjunction with any other business.
9. The Patna High Court while interpreting the provisions of Section 4 of the Bihar Money-Lenders (Regulation and Transaction) Act, 1939 holds that the business of money-lending imports a notion of system, repetition and continuity, and that is a test of determining whether the Plaintiff is a professional money-lender. Occasional loans to relatives, friends or acquaintances do not make the lender a professional money-lender. There must be more than occasional and disconnected loans to justify a finding that the Plaintiff is a professional money-lender (
10. The Rajasthan High Court in Gaurishanker v. Magharam, reported in AIR 1974 Raj 238 while interpreting Section 2(10) of the Rajasthan Money-Lenders Act, 1964, holds that an element of continuity and habit is essential to constitute the exercise of a profession or business. It is the professional money-lender and not the casual money-lender, who alone is contemplated by Section 2(10) of the said Act.
11. The Madhya Pradesh High Court in
12. In
13. While interpreting the provisions of Sub-sections (9), (13) and (14) of the Bengal Money-Lenders Act, 1940, this Court in
14. Supreme Court of
15. Supreme Court of India in Kalcilda Wallang and Ors. v. U. Lokeridra Suiam (dead) by Lrs., reported in AIR 1987 SC 2047 while interpreting the provisions of Assam Money-Lenders Act, 1934, holds that few disconnected and isolated transactions would not make the Plaintiff a person engaged regularly in money-lending business.
16. Supreme Court of India in
17. Therefore, one or two isolated or occasional acts of lending money will not constitute a money-lending business; instances of occasional lending of money even at a remunerative rate of interest are not sufficient to constitute business of money-lending. Every loan is a debt, but every debt is not loan. Thus, by laying stress on the business trait of the lending, the Bengal Money-Lenders Act, 1940 contemplates a professional money-lender and it is in relation to such a professional money-lender that the provisions as to a licensee and registrations are applicable.
18. In this case, No. written statement was filed. In the plaint, the Plaintiffs contended that the Plaintiff advanced loan to the Defendants. There is No. case in the plaint that the Plaintiffs are engaged in money-lending business or business of money-lending or there was any indication either in the pleading or in the evidence that the Plaintiffs advanced loan to any other person.
19. In the instant case, the evidence was that the original Plaintiff lent money on a single occasion. Therefore, it was not necessary that the Plaintiff should have taken out a licence under the Bengal Money-Lenders Act, nor it was necessary to send a statement of account to the Defendant as required by that Act.
20. The learned Trial Judge held that the Plaintiff failed to issue any notice through his Advocates to the Defendants asking them refund the loan amount. Therefore; in the opinion of the learned Judge, in the absence of notice for one month, the suit for recovery of money should fail.
21. The question, therefore, is whether the borrower is entitled to get a notice or a demand for refund of money lent and advanced before a suit can be instituted.
22. In this case, there was No. contract between the parties for giving a notice for one month through the learned Advocate for the lender before institution of a suit. In the plaint, it was stated that demands were made for refund of money, but in vain.
23. A demand for refund of money lent and advanced by issuing a notice through the learned Advocate of the lender is not a condition precedent to a suit. To call upon a lender, who had advanced an accommodation loan, in every such case, to make a demand for refund by issuing a notice before instituting a costly and time-consuming suit would be a tax on his generosity. We are not prepared to accept the findings of the learned Judge that, in the absence of any contract, a borrower is entitled to a notice for one month asking him to pay back the loan amount with interest.
24. The Plaintiff has, also, claimed for special damage and compensation for harassment, humiliation and mental agony and the Plaintiff valued such claims at Rs. 1,00,000/- (Rupees one lakh) only. We have considered the materials-on-record; we are of the opinion that Plaintiff could not establish such claims for special damage and compensation. We are not inclined to grant a decree to the Plaintiff on those scores.
25. Therefore, the impugned judgment and decree passed by the learned Trial Judge are set aside. Money Suit No. 16 of 2004 is decreed in part for Rs. 1,37,690/- (Rupees one lakh thirty seven thousand six hundred ninety) only. The Plaintiff shall, also, be entitled to interest at the rate of 12 (twelve) per centum per annum from the date of institution of the suit till recovery from the Defendants.
26. The Defendants are directed to pay the decreetal sum within a month from this date. In default, however, it will be open to the Plaintiff to initiate "execution proceedings for recovery of the decreetal sum in accordance with law.
27. Urgent xerox certified copy of the judgment and decree, if applied for, are to be supplied to the learned Advocates for the parties, upon compliance of all formalities.
Tarun Kumar Gupta, J.
I agree.
