- (1.)THE defendant Nanuram has filed this Revision application from the judgment and decree of the District Judge, Merta dated 7-4-1966 in a money suit.
(2.)IT is the admitted case of the parties that the plaintiffs-non-petitioners sold their standing crop in the field situate in village Dhanni to the defendant petitioner for a consideration of Rs. 500/- in cash, one maund of Bajri and one cartload of Pala. Since the defendant did not pay the amount, nor gave the stipulated Bajri and Pala, the plaintiffs filed this suit in the court of the Munsiff, Didwana for recovery of Rs. 500/- in cash and Rs. 253/14/6 as interest thereon, Rs. 32/- as cost of the stipulated Pala, Rs. 16/- as cost of one maund of Bajra and Rs. 10/- on account of Bighori= Total Rs. 811-14-6. The defendants contended that this transaction took place not in Sambat 2017, as alleged by the plaintiffs, but in Smt. 2016, and thus a material alteration in the Smt. year had been made by the plaintiffs in the suit document (Ex. 1) in order to bring the suit within limitation. IT was further pleaded that the defendant had made full payment and had also delivered the stipulated Bajri and Pala and nothing was due, and this suit had been brought on account of the strained relations between the parties.
After recording the evidence of the parties,, the trial court dismissed the suit, holding that the suit document had been executed in Smt. 2016 and that Smt. year had been changed from 2016 to 2017, and further that the defendant had made full payment, and nothing was due. The plaintiffs filed an appeal from the judgment and decree of the trial court which was allowed by the learned District Judge, Merta, who decreed the plaintiffs' suit for a sum of Rs. 811. 90 and further awarded pendente lite and future interest at the rate of 4% per annum.

Aggrieved of the judgment and decree of the first appellate court, the defendant has filed this revision.

Three points have been urged by the learned counsel for the petitioner. In the first instance, it has been contended that the suit transactions took place in Smt. 2016 and the document (Ex. 1) was also executed on Asoj Badi 1, Smt. 2016, but had been subsequently interpolated and the Smt. year had been changed from 2016 to 2017. He has also argued that the payment due on the basis of this document had been made in full and so also the stipulated Bajri and Pala had been given to the plaintiffs. In this connection, he has placed reliance on the evidence of the court witness - Ishwar Das and the statement of D. W. 1 Nanuram (defendant) and also the endorsement made on the reverse of Ex. A/1 - a promissory note dated 23-3 62. He has argued that even according to the plaintiff Prakash Chand's own admission, the advances made by the plaintiffs to the defendant subsequent to the suit document have been fully paid up, and the endorsement made on the reverse of the promissory note (Ex. A/1) goes to show that all the outstandings against the defendant had been discharged when the payment due on the promissory note was made. These contentions have been examined by the first appellate court at some length, and after discussing the oral and the documentary evidence produced by the parties, the lower appellate court has come to the conclusion that there has been no interpolation in the Sambat year in Ex. 1 nor the repayment is proved to have been made. It is not denied that there is evidence on the record in support of the finding of the lower appellate court in this respect. All that is argued is that the view of the evidence taken by the lower courts is erroneous and is based on mis-appreciation of evidence. The learned counsel for the petitioner has further submitted that the reasons given by the trial court for dismissing the suit are weighty and the lower appellate court has not been able to meet them. Suffice it to say that sitting as a court of revision, it is not open to me to re-appreciate the evidence and substitute my view of the evidence for the evidence of the lower court. That apart, in order to satisfy myself, I have gone through the relevant evidence on the record and am of the view that the finding of the lower appellate court cannot be said to be perverse or un-reasonable. The first contention of the learned counsel for the petitioner is therefore over-ruled.

In the second place, the learned counsel for the petitioner has also submitted that suitable instalments may be fixed for payment of the decretal amount. No such prayer was made in the written statement, nor any such prayer seems to have been made before the first appellate court either. No material has been placed on the record to show that it is a fit case in which instalments should be fixed for payment of the decretal amount. Learned counsel has invited my attention to sec. 28 of the Rajasthan Money Lenders Act (No. 1 of 1964), under which it is competent even for an executing court to fix instalments after a decree has been passed. Suffice it to say that so far as this Court is concerned, there are no circumstances whatever on the record to fix instalments nor it would be proper to allow the defendant-petitioner to make this submission at the stage of revision. However, if the petitioner thinks that he has a case for getting instalments fixed even by an executing court, he may, if so advised, raise this point in the course of execution.

The last point urged by the learned counsel for the petitioner is that the lower court erred in awarding interest at the rate of Rs. 1-9-0 per cent per month on the sum of Rs. 500/ -. It is contended that under sec. 29, sub-sec. (1) of the Rajasthan Money Lenders Act, the State Government has (vide Notification No. F. 23 (2) Rev. D/54, published in the Rajasthan Gazette Extraordinary dated 1-10 65) fixed the maximum rate of simple interest for any business of money lending in respect of secured and un-secured loans as 9% and 12% respectively, and consequently it was not competent for the lower appellate court to award interest at a rate more than 12% per annum. Reliance has been placed on sec. 29 of the said Act which reads, as under- - "29. Limitation on rates of interest - (1) The State Government may, from time to time, by notification in the Official Gazette, fix the maximum rates of simple interest for any class of business of money lending in respect of secured and un-secured loans. (2) No money-lender shall charge or receive from a debtor interest at a rate exceeding the maximum rate fixed by the State Government under sub-sec. (1 ). (3) Notwitstanding anything contained in any law for the time being in force, no agreement between a money-lender and a debtor for the payment of interest at rates exceeding the maximum rates fixed by the State Government under sub-sec. (1) shall be valid and no court shall in any suit to which this Act applies, award interest exceeding the said rates. "

It is contended by the learned counsel for the petitioner that the rates of interest fixed by the State Government under sec. 29 of the Act would be applicable even to those transactions which had been entered into prior to the coming into force of the Act, and even though the transactions took place long before the Act came into force, yet, according to the learned counsel, the plaintiffs would not be entitled to get more interest than what is permissible under this section.

Learned Counsel for the non-petitioners has, on the other hand, submitted that this point was not taken at any stage before the lower courts, and therefore, it should not be allowed to be raised for the first time in revision. He has also contended that it has not been proved that the plaintiffs carry on any business of money-lending, as defined in the Act, and thus it cannot be said that the plaintiffs are money lenders. He has also contended that the rates of interest fixed by the Government in exercise of the powers conferred by sec. 29, sub-sec. (1) of the Act would have application only to those transactions which have been entered into after the coming into force of the Act. In this connection, he has relied on Sajan Lal Jhaverilal & Co. vs. Gulabchand Keshrichand (1 ).

I have considered the rival contentions of the learned counsel on both sides. It is correct that this point was not taken up in written statement, nor any issue was struck in this connection. It is also correct that this question was not agitated even before the first appellate court. The point argued on behalf of the petitioner pertains to a mixed question of fact and law inasmuch as before sec. 29 is pressed into service, it is necessary for the petitioners to show that the plaintiffs are money lenders as defined in sec. 2 (2) of the Rajasthan Money Lenders Act. It is true, as argued by the learned counsel for the petitioner, that apart from the transaction in question, certain other advances have also been made by the plaintiffs non-petitioners to the petitioners, but there is no evidence on the record to show that the plaintiffs carry on the business of advancing loans. The utmost that can be said is that the plaintiffs had off and on advanced some loans to the petitioner, but it would not be proper to conclude from these dealings with a single individual that the plaintiffs are carrying on the business of money-lending. In the absence of evidence as to whether the plaintiffs are carrying on the business of advancing loans, it would not be possible to press into service sec. 29 and thereby give relief to the defendant.

Then again, there is another hurdle in the petitioner's way. The transaction in question admittedly took place before he Rajasthan Money Lenders Act came into force, and a serious question arises whether S. 29 would have application also to lose transactions which had been entered into prior to the corning into force of the Act. In this connection, I may draw attention to sec. 2, Subsection (15) of the Act which provides the meaning of the phrase 'suit to which this Act applies. ' It may be useful to reproduce Item No. 15 of Sec. 2: - " (15) 'suit to which this Act applies means any suit or proceeding: - (a) for the recovery of a loan made after the date on which this Act comes into force. " Thus, the definition of the phrase 'suit to which this Act applies' makes it clear beyond all doubt that s. 29 (3) cannot apply to this case, as the transaction was made before the date on which this Act came into force. Learned counsel for the petitioner, however, relied on sub-sec. (2) of sec. 29 and argued that according to this sub-section, no money lender shall charge or receive from a debtor interest at a rate exceeding the maximum rate fixed by the State Government under sub-sec. (1), and submits that even though the court may not be able to give relief to the defendant in respect of transactions entered into before the coming into force of the Act, there is a statutory bar prohibiting a money lender from realizing interest at a rate exceeding the maximum rate. I am afraid, this submission is devoid of force, and the only reasonable interpretation that can be put on sub-sec. (2), also is that no money lender shall charge or receive interest more than that fixed by the State Government only in respect of transaction which have been entered into after the date of the coming into force of this Act. It is a funda-mental rule of interpretation of statutes that no statute shall be construed to have a retrospective operation unless such a construction appears very clearly in the terms of the Act or arises by necessary and distinct implication. A statute is not to be construed to have a greater retrospective operation than its language renders necessary. There is nothing in s. 29 of the Act to show that the Legislature intended that the maximum rate fixed by the State Government u/sub-sec. (1) of S. 29 shall also apply to those transactions which had been entered into prior to the coming into force of the Act. In this connection, it may be pertinent to refer to S. 25 of the Bombay Money Lenders (Amendment) Act, III of 1951, which provides as follows - "1. The State Government may from time to time by notification in the Official Gazette fix the maximum rates of interest for any local area or class of business of money-lending in respect of secured and unsecured loans. (2) Notwithstanding anything contained in any law for the time being in force, no agreement between a money-lender and a debtor for payment of interest at rates exceeding the maximum rates fixed by the State Government under sub-sec. (1) shall be valid and no court shall in any suit to which this Act applies award interest exceeding the said rates. (3) If any money lender charges or receives from a debtor interest at a rate exceeding the maximum rate fixed by the State Government under sub-sec. (1), he shall, for the purposes of sec. 34, be deemed to have contravened the provisions of this Act. " While interpreting the provisions of s. 25 of the aforesaid Bombay Money Lenders (Amendment) Act, it was held by the learned Judge that S. 25 (2) has not been made retrospective and does not apply to transactions entered into before the Act came into force. Insertion of sub sec. (2) in sec. 29 in the Rajasthan Act would, in my opinion, make no difference and the same meaning has to be given to sub-sec. (2) also, otherwise there would be clear discrepancy between sub-sec. (2) and sub-sec. (3 ). I, therefore, hold that sec. 29 of the Rajasthan Money Lenders Act has not been made retrospective and does not apply to transactions entered into before the Act came into force. It was not intended by the Legislature that the rate of interest agreed upon in such a transaction should not be awarded merely because it was in excess of the rates fixed under S. 29, sub sec. (1 ). Thus, there is no force in this contention of the learned counsel for the petitioner also. The result is that this revision application has no force and is hereby dismissed with costs. .

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