DIBAKAR PRADHAN Vs. SK. MISKINI
HIGH COURT OF ORISSA
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R.N. Misra, J. -
(1.) THIS is a Plaintiff's application directed against the order of the learned Munsif of Balasore holding that a money claim laid by the Plaintiff was not maintainable in view of the provisions of Section 18 -B(2) read with Sub -section (8) of the Orissa Money -Lenders Act (hereinafter referred to as the 'Act').
(2.) PLAINTIFF filed a suit on 8 -4 -1977 for recovery of a sum of Rs. 1432/ -. from the Defendant on the allegation that he had borrowed a sum of Rs. 1,200/ -. on 10 -1 -1974 upon executing a promissory note stipulating to pay interest at the rate of 12 per cent per annum. Plaintiff further pledged that he was a registered money -lender and had obtained a certificate for a maximum capital of Rs. 10,000/ -. On 23 -6 -1977, the trial Court passed the following order:
Plaintiff files a petition praying for time to pay the ad valorem Court -fee on the ground mentioned in the petition. Heard. Time allowed till 15 -7 -1977 for filing necessary Court -fees, process -fee and requisites and for admission. The petition filed by Plaintiff to keep the document in sealed cover be put up then. Plaintiff to file the required certificate under Section 18 -B Sub -section (2) of O.M.L. Act by the date fixed.
On 15 -7 -1977, ad valorem Court -fee worth Rs. 209.25 paise was paid. The requisites were also filed. An application was filed for return of the money -lending licence, the accounts and the promissory note for obtaining the requisite certificate from the Sub -Divisional Officer, Balasore, under Section 18 -B(2) of the Act. The learned Munsif, however, held:
... Certificate as required under Section 18 -B(2) of O.M.L. Act having not been filed, the suit cannot be entertained and as such it is dismissed as not maintainable.
The Plaintiff has filed this application contending that the dismissal of the suit was contrary to law.
When the revision application was listed for hearing before our learned brother Panda, J. he directed the matter to be placed before a Division Bench for hearing as in his opinion there were two conflicting decisions of two learned Single Judges of this Court on the point. Our learned brother indicated in his order dated 27 -1 -1978:
... Mr. S. Misra (2) at the time of hearing of this Civil Revision pointed out that there are two conflicting decisions on the point one passed by Hon'ble Mr. Justice R.N. Misra and the other by Hon'ble Mr. Justice N.K. Das. The view taken by Hon'ble Misra. J, in between Rajkurnar Pruseth v. Mathura Satpathy and Ors. Second Appeal No. 42 of 1973 (disposed of on 26th July, 1976) not reported is thus:
In the absence of clear evidence that such a notification has been made and the specified authority has made the order in question against the Plaintiff, I do not think, the Plaintiff's suit at this stage should be dismissed on the preliminary ground.
Hon'ble Das, J, in the case of Basudeb Sahu v. K.O. Sahu and Ors., 1976 (2) C.W.R. 803, has observed thus:
Sub -section (8) of Section 18 -B, as stated above, clearly bars any claim to be entertained unless a prescribed authority has passed orders declaring the particulars of transaction that are within the amount specified in the certificate of registration and in absence of such a certificate all suits in respect of such claims shall stand abated.
Apparently, there is a conflict in the above two decisions....
On an analysis of the two decisions, we do not find any conflict. In the second appeal, there was no material at all that the notification contemplated under Section 18 -B(1) of the Act had been made. The scheme of Section 18 -B is such that until the requisite notification is made by the State Government, the section does not operate. As there was no material before the Court in the second appeal that the requisite notification had been made, one of us (Misra, J) was not prepared to accept the preliminary objection raised by the Respondents, in the second appeal to nonsuit the Plaintiff -Appellant. On the other hand, in the case before our learned brother Das, J, it had been conceded that the notification had been made and the certificate contemplated under Section 18 -B(2) had not been produced. Therefore, it had been stated that in the absence of the certificate, the suit had to abate. Each of the cases on its own facts appears to have been rightly decided and nothing has been said which would give rise to any conflict.
(3.) WITH the making of the notification under Sub -section (1) of Section 18 -B, the liability of the money -lenders to produce before the authority constituted under the notification all records relating to their business including documents, evidencing advance of loans arises. The specified authority is required to scrutinize the documents with a view to determining if the transactions exceed the amount for which the money -lender has obtained the certificate and after the scrutiny is over, and the money -lender is given an opportunity of being heard, to declare the particulars of transactions that are within the amount specified in the certificate and it is this declaration which has to be published in the notice board of the authority passing the order and copies thereof are required to be sent to the Block Development Officer and the Tahsildar within whose local limits, the money -lender's principal place of business is situated. Under Sub -section (5), the order under Sub -section (2) is required to be communicated to the money -lender forthwith. Right of appeal has been conferred under Sub -section (6) and Sub -section (8) provides:
No Court shall entertain any claim in respect of any loan advanced prior to the date of the order referred to in Sub -section (2) unless the particulars thereof are contained in the said order and all suits in respect of such claims shall stand abated.
The scheme under Section 18 -B is such that for suits which are pending on the date the amending provision comes into force and those that are filed after its commencement, it requires the order under Sub -section (2) to be filed. Under Section 18 -B, the legislative intention is that the prescribed authority has to expeditiously dispose of the application when made and is required to forward a copy thereof forthwith as provided in Sub -section (5) to the money -lender. The law -makers appear to be cognizant of the fact that if the proceeding under Section 18 -B is not expeditiously disposed of, the money -lenders on whose business restrictions have been imposed by this section may be adversely affected. It is, therefore, incumbent upon the specified authority to dispose of the applications without delay 3rd create no problem for the money -lenders.;
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