IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUIT NO. 1975 OF 1999 Ravindra I. Sethna.... ...... ......Plaintiff. V/s Dhirajlal Mangaldas & Co. & Ors. ...... ......Defendants. Mr.H.C.Mehta, Adv. for the plaintiff. Mr.V.L.Desai, Adv. for the defendants. CORAM: A.P.DESHPANDE, J. 2/5/08 ORAL JUDGMENT: The plaintiff had instituted the instant suit and claimed a money decree for recovery of an amount of Rs.01,08,917/- together with interest on the principle sum of Rs.1,00,000/- at the rate of 21% p.a. From the date of filing of the suit till realization of the amount. 2. It is the case of the plaintiff that defendant No.1 is a partnership firm of which defendant Nos.2, 3 and 4 are partners dealing in and carrying on business as exporters and importers and grocery spices merchants and commission agents at the address given in the plaint. On or about 13.12.97 the plaintiff deposited a sum of Rs.1,00,00/- with defendant No.1. The amount was deposited by cheque dated 13.12.97 drawn in favour of defendant No.1. Defendant No.1 acknowledged receipt of the said sum of Rs.1,00,000/- by way of deposit. The receipt is also dated 13.12.97. The document referred to as receipt, inter alia, mentions that the defendant No.1 has received the sum of Rs.1,00,000/- by cheque and rate of interest stipulated therein is 1.75 per mensum (works out to 21% p.a.). Thus the receipt categorically acknowledges receipt of sum of Rs.1,00,000/- and assurance from defendant No.1 to pay interest at the rate of 21% p.a. The defendant No.1 did pay by cheque the amount of interest on the said deposit after deducting TDS till 30.9.98 and did not pay interest thereafter. Hence the plaintiff after making demand for the principal amount of deposit and the interest has instituted this suit for recovery of the amount. Rs.8,342/0 constitutes interest whereas the principal amount is Rs.1,00,000/-. 4. On the basis of pleadings following issues were framed: 1) Whether the suit is liable tobe dismissed for non-joinder of the necessary party? 2) Does the plaintiff prove that the defendants agreed to pay the amount in Exh.`A' to the plaint and interest thereon on demand? 3) Does the plaintiff prove that principal amount of Rs.1,00,000/- and interest from 1.10.1990 to 3.3.1999 became due and payable by the defendants to plaintiff on 1.10.1998? 4) Does the plaintiff prove that he made repeated requests and demands for payment of Rs.1,00,000/- and interest thereon prior to 1.10.1998? 5) Does the plaintiff prove that a sum of Rs.1,00,000/- and interest of Rs.9,917/- as per particulars of claim Ex.`C' to the plaint became payable by the defendants to the plaintiff? 6) Does the plaintiff prove that any cause of action arose to him to file the suit? 7) Whether the document Ex.`A' to the plaint is insufficiently stamped and not admissible in evidence under the Bombay Stamp Act 1958 and/or Indian Stamp Act 1899? 8) Do the defendants prove that the plaintiff is a Money Lender and the suit is liable to be dismissed under section 10 of the Bombay Money Lenders Act, 1946? 9) Do the defendants prove that the suit is premature and liable to be dismissed? 10) What order and decree? 3. The defendants by filing written statement have opposed the claim made in the suit by raising certain technical objections but have not disputed the receipt of sum of Rs.1,00,000/- by way of deposit on payment of interest. The defendants have contended that it was agreed between the plaintiff and the defendants that the deposit was kept by the plaintiff for a long term and the principal amount with interest was “payable when able basis” as there was a financial crunch in the market. The contentions raised by the defendants are set out here in below: (i)That the amount was not payable on demand but was kept with the defendants for long term. (ii)That the plaintiff is money lender and thus a decree cannot be passed in favour of the plaintiff. (iii)That the receipt is inadequately stamped and the document not being properly stamped the same is not admissible in evidence. 4. The plaintiff has stepped into witness box and deposed about the facts averred in the plaint. The evidence of the plaintiff has gone unchallenged. The defendants have not entered the witness box. IN this set of facts and in the light of evidence led by the plaintiff it is clearly established that the plaintiff had deposited sum of Rs.1 lac with defendant No.1 on 13.12.97 on the defendants agreeing to pay interest at the rate of 1.75% per mensum (21% p.a.). The plaintiff has also established that he has received interest at the agreed rate till the end of September, 1998 and thus the amount claimed be decreed for the principal amount so also the interest at the agreed rate. This takes me to the consideration of objections raised by the defendants to the suit claim. Learned counsel for the defendants had in the first place contended that the amount was not payable on demand. The receipt which acknowledges receipt of the amount of Rs.1 lac does not make any mention in regard to time by which the amount of deposit would be repaid. In the absence of any contract to the contrary the amount due and recoverable by the plaintiff would be payable on demand by the defendants. Thus the defendants are liable for payment of the said amount as and when demanded. In the present case despite repeated demand the amount has not been paid. Thus there is no substance in this submission made by the learned counsel for the defendants. The next submission is that the plaintiff is money lender and thus a suit filed by him cannot be decreed in view of the provisions of section 10 of the Bombay Money-Lenders Act, 1946. It is obvious that the burden to establish that the plaintiff is money lender would be on the defendants fsor the reason that the defendants are claiming benefit under the provisions of the Bombay Money- Lenders Act. The defendants have not led any evidence and the learned counsel for the defendants tried to establish that the plaintiff is money lender by contending that the plaintiff has instituted the suit No.1975/99 whereas the plaintiff's wife has instituted suit NO.2004/99. It is submitted that in the other suit filed by wife of the plaintiff there are four transactions of deposit of the amount by plaintiff with the defendants and thus having regard to the five transactions in total it is urged that finding be recorded that the plaintiff is a money lender. Defendants have not led any evidence to substantiate their contention that the plaintiff is involved in the business of money lending. Depositing the amount on one or few occasions with the defendant No.1-firm would not amount to lending money by plaintiff to the defendants. Learned counsel for the plaintiff has placed reliance on various judgments to indicate that money lending business always imports a notion of system, repetition and continuity. Placing reliance on a judgment reported in the case of Gajanan & Ors. V/s Seth Brindaban, AIR 1970 SC 2007 it is submitted that the expression money lender would would exclude isolated transactions as money lending transactions. To assess a person as money lender he must be shown in the habit of advancing loans as a matter of regular business and isolated acts even of money lending would not constitute a money lending business as such. Learned counsel for the plaintiff has placed reliance on a judgment reported in the case of Nandram Kaniram & Ors. V/s N.B.Rahatekar, 1994 Mh.L.J. 380 so also a judgment reported in the case of M/s.Rushabh Precision Bearings Ltd. V/s M/s.Marine Container Services (India) Pvt. Ltd., 1999 (3) Bom.C.R. 760. On the basis of evidence on record it is clear that the plaintiff is not a money lender and hence bar of section 10 does not apply. The suit in present facts as a summary suit is very much maintainable as it is based on written contract which document is in the form of a receipt. It bears revenue stamp of Re.1/- and thus it cannot be said that the same is insufficiently stamped. In the result there is no substance in the defence raised by the defendants. Hence following order is passed: Plaintiff's suit for recovery of an amount of Rs.1,08,917/- is decreed. Defendants are jointly and severally directed to pay the sum of Rs.1,08,917/- to the plaintiff together with interest at the rate of 12% per annum from the date of filing of the suit till realization. Suit is decreed with costs. Decree be drawn up accordingly. 2.5.08