1 pps IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO.365 OF 2009 with CIVIL APPLICATION NO.1293 OF 2009 Prafulkumar G. Ekbote ..Appellant versus Govind Gajanan Sathe ..Respondent Mr.Ashutosh Kulkarni for the appellant Ms. Yamini Chandran for the respondent CORAM : R.Y.GANOO, J. DATE : 30th JUNE, 2009. P.C: 1. The respondent herein filed suit in the Court of Joint Civil Judge, Senior Division, Kalyan, being Special Civil Suit No.118 of 2002 for recovery of Rs.3,88,465/-. The learned Judge before whom the trial was conducted, by judgment and decree dated 11.12.2008 decreed the suit and ordered the appellant to pay to the respondent the sum of Rs. 3,85,000/- along with interest at the rate of 6% 2 per annum from the date of filing of the suit till realization. This judgment and decree is challenged before this Court. 2. I have extensively heard learned Advocates Mr. Kulkarni and Ms. Chandran. It was sought to be argued by learned Advocate Mr. Kulkarni that the document on the basis of which the transaction was entered into was a money lending transaction and therefore the same was hit by the provisions of Bombay Money Lenders Act in as much as the respondent indulged in the transaction without obtaining money lending license. In so far as this aspect is concerned, he drew my attention to the text of the document and submitted that the liability to pay interest is not set out in clear terms by the use of the words payment of interest but the said liability is couched in a different language so as to show that the transaction was not money lending transaction and no interest was recovered from the appellant. I have considered the document in question. If the 3 appellant has agreed to sign a particular document it will not be normally open to the Court go beyond the document and try to understand the real relationship between the parties. Even if for a moment it is accepted that the terminology used in the document was couched in order to show that what was being paid by the appellant was not interest but payment of money in some other terms, still in order to say that the suit transaction is hit by the transaction of Bombay Money Lending Act, it was necessary for the appellant to bring on record sufficient evidence to show that the appellant is indulging in advancement of loan to various other persons including the appellant. No such evidence is placed before the court and to that extent no opinion can be formed by this court. Even if it is accepted for a moment that suit transaction is money lending transaction, in the absence of satisfactory evidence to show that the appellant was advancing loan to various other persons, the suit transaction cannot be called as money lending transaction as understood according 4 to the provisions of Bombay Money Lending Act. If this be so, the plea of the appellant that the transaction was hit by Bombay Money Lending Act cannot be accepted and the same is required to be rejected. It was also sought to be argued that the respondent had demanded sum of Rs.50,000/- by way of damages and that appropriate Court fees is not been paid by the respondent on the said sum of Rs.50,000/-. In so far as this aspect is concerned, it is specifically averred in the plaint that the respondent is ready and willing to pay the court fee if the claim is granted. Even if this averment is seen, in my view it was the duty of the Court to fix the court fee. As regards payment of court fee the appellant has not raised objection and he has not pressed the said point in accordance with the provisions of law. It was open for the appellant to put up an application calling upon the Court to reject the plaint for non payment of Court fee. That has not been done. Ultimately, the learned trial Judge has not granted the sum of Rs.50,000/- as claimed. 5 Hence there is no need for his court to go into the merits as regards non payment of the court fee on the sum of Rs.50,000/-. If the respondent would have been directed to pay the Court fee, I am sure he would have paid the same. In my view, the learned trial Judge has taken correct view of the matter based on the evidence and has decided the matter in its proper perspective. No interference is required. First appeal is required to be dismissed. Hence the order. ORDER First Appeal is dismissed with no order as to costs. In view of the dismissal of the first appeal,Civil Application No.1293 of 1990 does not survive and the same is dismissed with no order as to costs. (R.Y.Ganoo, J.)