- (1.) Kalu Ram, plaintiff-respondent sought to recover a sum of Rs. 1,200/- comprising of Rs. 1,000/- as the principal amount advanced as loan to Som Nath, defendant-appellant, vide pronote Exhibit D.2 dated 29.4.1961, and Rs. 200/- as an interest thereon. The defendant admitted the execution of the pronote, but pleaded want of consideration. He also averred that the plaintiff was not entitled to the interest and the costs as he had not maintained any account in terms of the provisions of clauses (a) and (b) of sub-section (1) of Section 3 of the Punjab Regulation of Accounts Act, 1930, hereinafter referred to as the Act. The trial Court struck the following two issues : (1) Whether the pronote, the basis of the suit, is without consideration ? (2) Whether the plaintiff complies with the provisions of clauses (a) and (b) of sub-section (1) of Section 3 of the Punjab Regulation of Accounts Act, 1930; and if not what is its effect ? Since the trial Court found issue No. 1 in favour of the defendant it did not give any finding on issue No. 2 on that account; while the lower appellate Court, despite its having reversed the finding of the trial Court under issue No. 1 also did not give any finding under issue No. 2, and allowed the appeal of the plaintiff and decreed his suit.
(2.) Mr. B.S. Jawanda, learned counsel for the appellant-judgment-debtor, has argued that issue No. 2 had to be decided by the Courts below as preliminary issue and since both the Courts below have failed to decide issue No. 2 and went into the merits of the controversy, the judgments and decrees of both the Courts below stand vitiated. In support of his submission, he referred me to the provisions of Section 4(a) of the Act which is in the following terms :- "4. Notwithstanding anything contained in any other enactment in force for time being - (a) in any suit or proceeding relating to a loan the Court shall before deciding the claim on the merits, frame and decide the issue, whether the creditor has complied with the provisions of clauses (a) and (b) of sub-section (1) of Section 3;......" A perusal of the provisions of the Act leaves no manner of doubt that in a suit or proceedings relating to a loan, the Courts cannot go into the merits of the claim without first striking and deciding an issue to the effect as to whether the creditor had complied with the provisions of clauses (a) and (b) of sub-section (1) of Section 3 of the Act.
(3.) In the present case, both the Courts below have violated the aforesaid mandatory provisions of Section 4 of the Act. Accordingly, both the judgments and decrees of the Courts below stand vitiated and are accordingly quashed. The case is remitted back to the trial Court, which shall decide the suit afresh in accordance with the observations made above and according to law. The respondent shall pay to the appellant half the costs of this appeal. Appeal accepted.;