Dua, J. - (1.) This is an appeal with certificate under Art. 133 (1) (a) of the Constitution by Gajanan and his two sons Janardhan and Nanaji who figured as defendants 1, 4 and 5 respectively in the suit instituted by Seth Brindaban, respondent in this appeal. It is directed against the judgment and decree of the Bombay High Court (Nagpur Bench) dated February 7, 1966 allowing the plaintiff's appeal in part against the dismissal of his suit by the trial court, and granting him a decree for Rs. 1,60,000/- against the appellants. The other two defendants, Rajeshwar and Narhari, were also the sons of Gajanan:the dismissal of the suit against them was upheld by the High Court. The suit for foreclosure of three mortgages was instituted on December 1, 1950. The plaintiff claimed a decree for foreclosure of the mortgages:the mortgage amount due was stated to be Rs. 1,07,269/2/- with future interest. The suit was contested on various grounds but the main point with which we are concerned in this appeal was raised in the amended written statement allowed by the court on December 15, 1959, nine years after the institution of the suit. According to the amended plea: (i) the plaintiff being a moneylender within the meaning of C. P. Money Lenders' Act (XIII of 1934) and no certificate under S. 11F of that Act having been secured by him the transaction in dispute was void and the suit was, therefore, incompetent, (ii) production in court of moneylender's licence was necessary for the maintenance of the suit; and (iii) the plaintiff had not maintained proper accounts of the moneylending business and had not given Diwali notices to the defendants in respect of this debt and this omission disentitled him to claim interest.
(2.) Seven additional issues were framed on the amended pleas. They are mainly concerned with the provisions of the Moneylenders' Act. The trial court repelled the plaintiff's submission that the case was governed by the Bombay Moneylenders' Act. It was contended on his behalf that with effect from February 1, 1960 the provisions of C. P. and Berar Moneylenders' Act had ceased to apply to the territory in question and in its place the Bombay Moneylenders' Act was made applicable. The Bombay Act was thus claimed to govern this case. Disagreement with this submission the trial court held the Bombay Act to be prospective only and, therefore, inapplicable to pending cases. The present suit which had been instituted in 1950 in respect of a transaction of 1947 was accordingly held to be governed by the provisions of the C. P. and Berar Moneylenders' Act. The plaintiff was found to have contravened sections 11F and 11H of the C. P. Act and, therefore, disentitled to maintain the suit. He was also held disentitled to claim interest as he had not sent statement of accounts as he had not sent statement of accounts as required by that Act. As regards the liability of defendants 2 and 3, they were held not to be bound by the mortgages, but it was observed that a simple money decree could be passed against them provided the claim was otherwise legally enforceable. In case the plaintiff's claim deserved to be decreed then in the trial court's view there had to be three decrees because there were three mortgages covering three separate properties. The share of defendant no. 5 was also held to be bound by the three mortgages dated September 12, 1947. The registration of documents at the instance of the court was found to be proper and lawful. The decision in the previous suit was held to operate as res judicata. The suit, as observed earlier was dismissed on the ground of violation of the C. P. Act.
(3.) On appeal to the High Court the following seven points fell for determination. " (1) Was the appellant a moneylender within the meaning of the C. P. and Berar Moneylenders Act and was he required to obtain a moneylender's licence for Chanda District because the transaction pertains to property to Chanda district (2) Were the documents duly attested vis-a-vis respondents 2 and 3 who had appended their signatures to the documents if it is held that the documents were not attested so far as defendants 2 and 3 are concerned, what will be the effect on the liability of defendants 2 and 3 (3) Could a personal decree for payment of money be passed against defendants 2 and 3 (4) Is the appellant entitled to claim interest because of his failure to send statements of account as required by section 3 (b) of the C. P. and Berar Moneylenders Act Was the appellant liable to maintain accounts as provided by section 3 (a) of the Moneylenders Act (5) Are the three instruments validly registered or is the registration void (6) Are the findings on issues 1 to 6 in the present suit barred on the principle of res judicata because the subject matter of those issues was also the subject matter of identical issues in the previous litigation finally decided between the parties (7) Could a decree be passed against respondent no. 5 after he attained majority, respondent No. 5 not having himself executed the instruments sued upon - On behalf of the plaintiff (appellant in the High Court) it was stated that he had made an application for the certificate but had not yet obtained the same. The High Court held that Section 11H of the C. P. and Berar Moneylenders' Act did not apply to the case. It, however, observed that the Court would have normally granted time to the plaintiff to produce the necessary certificate if the Act had been held applicable. In the opinion of the High Court the plaintiff was doing moneylending business in Yeotmal District and had obtained the requisite licence for that district in August, 1947 which was thereafter regularly renewed. The transaction in question was held to be an isolated transaction which did not clothe the plaintiff with the character of a moneylender carrying on the business of moneylending in Chanda District. It further observed that though the transaction in question related to property at Chanda and payment was also made at Chanda, the amount was paid from the Wani shop where the accounts were maintained. This was in Yeotmal District for which the plaintiff held the necessary certificate. On this view the High Court disagreed with the conclusion of the trial court. The High Court further added that it was not the defendants' case that the plaintiff had been carrying on money lending business in Chanda District after 1950 or in 1959 or even in April, 1960 when the suit was decided. The three documents executed by the court were also held to be duly executed and duly registered so as to be binding on defendants 1, 4 and 5. In regard to defendants 2 and 3, the High Court felt that even a money decree could not be passed against them and the suit against them must fall in its entirety. The conclusion of the trial court that the decision in the previous suit operated as res judicata was upheld. In the final result the plaintiff was held entitled to a decree for the principal sum of Rs.80,000 on the basis of the three mortgages and a further sum of Rs. 80,000 by way of interest, the total amount being Rs. 1,60,000/-. This decree was made against defendants 1, 4 and 5. They were given six months' time to pay up the amount with further interest at 6 p.c. per annum on the principal amount till realisation. If the amount was not paid the mortgages were to stand foreclosed. The suit against defendants 2 and 3 was dismissed without costs.;