1 IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO.211/2003. Smt. Bina Alhad Naik, major of age, married, wife of Shri Alhad Yeshwant Naik, daughter of Venkatesh V. Prabhu Verlekar, residing at 50-G, Teliawada, Bastora, Bardez, Goa. .. Appellant. Versus. 1) Shri Deu Keshav Naik, major, married, son of Keshav Naik, resident from Menkurem, Bicholim, Goa. Proprietor of M/s. Deekay Real Estates and Developers, having office at 'Deekay Plaza' Umtavaddo, Calangute- Baga Road, Calangute, Bardez, Goa. 2) Smt. Shilpa Deu Naik, major, married, wife of Shri Deu Keshav Naik, residing at Menkurem of Bicholim Taluka, Goa. 3) Shri Abdul Gani Badyari, major, married, and his wife, 4) Smt. Susan Badyari, major, wife of Abdul Gani Badyari Both nos. 3 & 4 residing at Orinha Cottage No.1, Umtavaddo, Calangute, Bardez, Goa. .. respondents 2 Mr. J. E. Coelho Pereira, Senior Advocate with Mr. V. Korgaonkar,, Advocate for the Appellant.. Mr. Shivan Desai Advocate for the respondent Nos. 1 & 2. Mr. T. George John, Advocate holding for Mr.G. Kanekar, Advocate for the respondent Nos. 3 & 4. Coram :- S. C. DHARMADHIKARI & R. C. CHAVAN, JJ. Date : - 06 th August, 2008. ORAL JUDGMENT : ( PER S. C. DHARMADHIKARI) 1. The appellant is the original plaintiff. The appellant instituted a suit in the Civil Court being Special Civil Suit No.74/2001. The suit was filed with following prayers. “ (a) This Hon. Court be pleased to order the defendant No.1 to hand over, to the plaintiff, the vacant possession of the said flats Nos. S-1, S-2, S-3 & S-4 in Block-A, on the second floor of the said building known as “ Deekay Plaza” on the property surveyed under No.205, sub-division, No.3, situated at Calangute, Bardez, Goa, after evicting the defendants Nos. 3 & 4 therefrom, in accordance with an agreement dated 22.8.1998 executed by and between the plaintiff and the defendant No.1; or in the alternative (aa) This Hon. Court be pleased to order the defendants jointly and/or severally to pay the sum of Rs.23,10,000/- (Rupees twenty three lakhs ten thousand only), Rs. 15,00,000/- being the principal sum and 3 Rs.8,10,000/- being the interest upto the date of filing of the present suit, together with further interest at the rate of 18 % p.a. from the date of filing of the present suit. (b) This Hon. Court be pleased to grant a permanent injunction restraining the defendants, their agents,servants relatives etc. from interfering in any way with the said flats Nos. S-1, S-2, S-3 & S-4 or from transferring, conveying, damaging or encumbering the same in any manner; (c) Costs may please be granted to the plaintiff ; (d) This Hon. Court be pleased to grant the reliefs as may become necessary to the plaintiff.” 2. It appears that the original defendant Nos. 3 & 4 filed their written statement on 6.12.2001 and issues were drawn on the basis of the pleadings on 15.6.2002. Thereafter, affidavit evidence of the plaintiff was also led. In the meanwhile, an application was filed by defendant Nos. 1 & 2 (Exh.23) for rejection of the plaint by invoking powers under Order VII, Rule 11 of the Code of Civil Procedure. 3. The gist of the pleas raised is that the defendant No.1 availed various loans from the original plaintiff. The affidavit evidence shows as to how the loans were advanced. Prayer clause (aa) speaks about the recovery of amount of Rs.23,10,000/- together with further interest at the rate of Rs.18 %. In such circumstances, it is evident that the plaintiff carries on business of money lending. In view of Section 14 4 of Goa Money Lenders' Act, there is a bar and unless the money lender holds a valid licence, he cannot come before a Court of Law and seek recoveries of monies lent. In such circumstances and unless the requirement of that Statute is satisfied, the Civil Court will have no jurisdiction to entertain the suit. The suit, therefore, be dismissed. 4. It appears that no reply was filed by the appellant original plaintiff to this application, but the contention raised orally was that the plaintiff's allegations must be seen as a whole. Read as a whole, the suit is nothing but one pleading specific performance of an Agreement to sell of immovable property which is in writing and executed on 22.8.1998. All transactions of lending and advancing monies prior thereto are not relevant and germane and claim for specific performance or in the alternative for damages, must be adjudicated in accordance with law. 5. Based upon these pleas, the application claimed to be argued and the learned Judge has by the impugned judgment and order concluded that the plaintiff is not holding a valid money lending licence. Therefore, the claim in the suit may be for specific performance of an agreement dated 22.8.98, but it is essentially a money suit. The plaintiff being a money lender and the Statutory compliance not being set out, the suit must be dismissed. That is how, the application is 5 allowed and the plaint is rejected. 6. The aggrieved plaintiff is in Appeal against the impugned judgment dated 25.3.2003 rejecting his plaint. 7. We have heard Shri J.E.Coelho Perriera, learned Senior Counsel appearing for the original plaintiff, Mr. Dessai, learned Counsel appearing for the respondent Nos.1 & 2 who are original defendant Nos. 1 & 2 and Shri T George John, Counsel appearing for the respondent Nos. 3 & 4. We have been taken through the plaint averments by Shri Coelho Perriera. He submits that if the objection to the maintainability of the suit is on the ground that it is nothing but a money lending transaction, then, it was incumbent for all parties to have led evidence. The issue must be answered after the evidence is led before the Court. At least, the plaintiff's version is on record and its veracity is yet to be tested in cross-examination, it was not open for the learned Judge to have rejected the plaint by invoking the provisions of Order VII, Rule 11 of the Code of Civil Procedure. The plaint averments taken as a whole, do not permit rejection at the threshold is the submission. 8. Mr. Dessai appearing for the contesting defendants respondent Nos. 1 & 2 supported the impugned judgment. 9. With the assistance of the learned Counsel appearing for 6 the parties, we have perused the Appeal memo and the annexures thereof including plaint and the impugned judgment. The learned Judge is only influenced by the fact that the plaint averments show that there is an alternate claim for recovery of Rs.23,10,000/- with interest. He has relied upon paragraph 2 of the plaint and concluded that original defendant No.1 was in Real Estate Business and was availing loans from the original plaintiff. The plaintiff has himself stated that he advanced the sums mentioned in the plaint. This is corroborated by paragraph 3 of the affidavit evidence of plaintiff where he has stated that the amount came to be advanced against Hundi signed by the original defendant No.1. 10. Taking these averments to be the foundation of the claim of the plaintiff that the learned Judge adverted to the Goa Money Lenders' Act, 2001 and relevant definitions thereunder. He has been largely influenced by the fact that the contents of the plaint and alternate prayer for recovery of monies so also, taking paragraph 2 & 3 of the plaint into consideration, he reached the conclusion that the suit is hit by the provisions of Money Lenders' Act. There is no compliance with the said Statutory provisions and, therefore, the plaint must be rejected. 11. We see substance in the contention of Shri Perriera that such decision of the learned Judge is rendered without adverting to all 7 the averments in the plaint. There are cases where the claim of specific performance is held not to be proved but such conclusions are reached ultimately after all materials are produced. It is then held that the suit is essentially for recovery of monies. The transaction to allegedly sell immovable property is nothing but a security for repayment thereof. The foundation of the suit is nothing but a loan transaction or money lending. However, it is always risky to reach such a conclusion at threshold and without permitting the parties to prove the rival cases. In the facts and circumstances of this case, we are in agreement with the original plaintiff that the plaint averments should have been read as a whole. Read as a whole, they project the grievance of the first defendant having failed to abide by the terms and conditions of an Agreement for sell of immovable property. The plaintiff asserted that he has complied with all terms, made the necessary payments and yet he has been not put in possession of the flats/units which have been more particularly referred to in the plaint. By no stretch of imagination, can we straightway conclude that plaintiff would not be in a position to prove the suit claim. The defence raised will also have to be taken into consideration but at an appropriate stage. By picking and choosing some averments in the plaint and reading them out of context, one cannot conclude that money lending transaction is the foundation and, therefore, no compliance is made allegedly with the Goa Money Lenders' Act that the plaint deserves to be rejected. In our view, the 8 learned Judge committed a patent error in the peculiar facts of this case while exercising powers under Order VII, Rule 11 of the Code of the Civil Procedure when he had before him plaintiff's version on affidavit which was allowed to be tendered subsequent to issues being framed. The issues were framed after rival pleadings were perused. There was no warrant for taking cognizance of such an application, instead the suit should have been allowed to proceed and by now it would have been disposed of on merits. Apart from this, there is nothing on record by which we can conclude that the Act of 2001 would be applicable in the facts of this case. 12. In the result, we find that the order of the learned Judge suffers from a patent error and is otherwise unsustainable in law. It deserves to be quashed and set aside. It is, accordingly, quashed and set aside. First Appeal No.211/2003 succeeds. The plaint is restored to the file of the Civil Court. The suit shall now proceed from the stage where the plaintiff has stepped into the witness box and deposed in chief. He shall submit himself to cross-examination and thereafter, lead further evidence. Equally, the defendants would be at liberty to lead their evidence. The learned Judge to hear oral arguments after conclusion of evidence and record findings on each of the issues and in accordance with law. 9 13. Considering the fact that the suit is pending for last 7 years, the learned Judge to give it priority and dispose it of as expeditiously as possible and within a period of 6 months from the date of this order. Needless to state that we have not expressed any opinion on merits and any observations in this judgment, shall not be construed, as this Court having upheld the objection of the defendants or that reaching a conclusion that suit is not hit by Money Lenders' Act. All contentions and pleas in this behalf are kept open. Parties to appear before the Trial Court on 26.8.2008 at 10.30. a.m. S. C. DHARMADHIKARI, J R. C. CHAVAN, J SMA