C.R. No. 1227 of 2009 1 IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH C.R. No. 1227 of 2009 (O&M) Date of Decision : 13.7.2009 Dina Nath .......... Petitioner Versus Yash Pal ...... Respondent CORAM : HON'BLE MR. JUSTICE VINOD K. SHARMA Present : Mr. Vijay Rana, Advocate for the petitioner. Mr. Tribhuvan Singla, Advocate for the respondent. **** VINOD K. SHARMA, J. (ORAL) C.M. No. 5548-CII of 2009 This application under Section 151 of the Code of Civil Procedure has been moved seeking permission for placing on record the copies of Annexures P-1 to P-8. For the reasons stated in the application, the C.M. is allowed. The applicant-petitioner is granted permission to place on record the copies of Annexures P-1 to P-8. C.M. No. 5549-CII of 2009 This application under Section 151 of the Code of Civil Procedure has been moved seeking exemption from filing the certified / C.R. No. 1227 of 2009 2 original copies of Annexures P-1 to P-8. For the reasons stated in the application, the C.M. is allowed. The applicant-petitioner is exempted from filing the certified / original copies of Annexures P-1 to P-8. C.M. No. 5772-CII of 2009 This application under Section 151 of the Code of Civil Procedure has been moved seeking exemption from filing the certified copy of Annexures P-9. For the reasons stated in the application, the C.M. is allowed. The applicant-petitioner is exempted from filing the certified copy of Annexures P-9. C. R. No. 1227 of 2009 & C.M. No. 5550-CII of 2009 This revision petition is directed against the order dated 20.1.2009, passed by the learned Executing Court vide which application moved by the petitioner under Section 3 of the Punjab Registration of Money Lender's Act, 1938, stands dismissed. The respondent / decree-holder had filed a suit for recovery against the petitioner herein, for recovery of amount advanced to him by way of loan along with interest. The suit was decreed. The respondent / decree-holder filed an execution-application, wherein the petitioner moved an application under Section 3 of the Punjab Registration of Money Lenders Act, 1938 for dismissal of the execution C.R. No. 1227 of 2009 3 application for want of money Lenders licence. Section 3 of the Punjab Registration of Money Lenders Act, 1938, reads as under :- “3. Suits and applications by money-lenders barred, unless money-lender is registered and licensed.- Notwithstanding anything contained in any other enactment for the time being in force, a suit by a money- lender for the recovery of a loan, or an application by a money-lender for the execution of a decree relating to a loan, shall, after the commencement of this Act, be dismissed, unless the money lender - (a) at the time of the institution of the suit or presentation of the application for execution: or (b) at the time of decreeing the suit or deciding the application for execution - (i) is registered; and (ii) holds a valid licence, in such form and manner as may be prescribed; or (iii) holds a certificate from a Commissioner granted under section 11, specifying the loan in respect of which the suit is instituted, or the decree in respect of which the application for execution is presented; or (iv) if he is not already a registered and licensed money-lender satisfied the Court that he has applied to the Collector to be registered and licensed and that such application is pending; provided that in such a case, the suit or application shall not be finally C.R. No. 1227 of 2009 4 disposed or until the application of the money-lender for registration and grant of licence pending before the Collector is finally disposed of.” The contention of the learned counsel for the petitioner, therefore, is that at the time of presentation of application for execution it was incumbent upon the decree-holder to have produced the money lender's licence, and in absence thereof the decree could not be executed. In support of the claim, the petitioner also cited certain instances wherein the decree-holder had advanced loan to some other persons on promisory note. The application was contested, wherein a stand was taken by the respondent / decree-holder, that he was not doing the business of money lending and that the loan advanced was friendly loan. The learned executing Court held, that the plea of petitioner that the decree-holder was money lender, was rejected by the District Judge in appeal filed by the petitioner against the judgment and decree. In support of the contention raised, the learned counsel for the petitioner has placed reliance on the judgment of this Court in the case of Daljit Kumar and another Vs. Popal Dass AIR 1981 P&H 211, wherein this Court has been pleased to lay down as under :- “3. The sole point which has been urged by the learned counsel for the petitioners is that the respondent having been admitted to be a money lender, he had a statutory duty under Section 3 of the Punjab Registration C.R. No. 1227 of 2009 5 of Money Lenders Act, 1938 to produce the certificate of registration granted under the Act which he never did. A consequence of this default is that his suit has to be dismissed as prescribed under Section 3 of the Act. This mandatory provision of law appears to have been ignored by both the Courts below. If any authority is required on the point, the same is contained in Kapur Singh v. Firm Bhagwan Das Sat Pal, (1971) 73 Punj LR 628.” The contention of the learned counsel for the petitioner, therefore, is that the impugned order deserves to be set aside, as the learned executing Court has dismissed the application, by misinterpreting the provisions of Section 3 of the Punjab Registration of Money Lenders Act, 1938, reproduced above. The learned counsel for the respondent /decree-holder contends, that the application moved by the petitioner was not maintainable for the reason, that this plea was specifically declined by the learned District Judge in an appeal. He referred to para 15 of the judgment passed by the learned District Judge, Jalandhar dated 15.10.2007, which reads as under :- “Under the Registration of Money Lenders Act only a money lender is required to possess a licence under that Act before filing a suit for the recovery of the loan advanced by him. It was no where pleaded by the defendant that the plaintiff is a money lender nor anything has been proved on the record from which it could be inferred that he was doing money lending business. Therefore, he was not supposed to possess a C.R. No. 1227 of 2009 6 licence of money lender before instituting this suit. The argument advanced by the learned counsel for the defendant to that effect is totally devoid of any merit. On the basis of the evidence produced on the record, this issue was correctly decided by the learned trial court and that finding is hereby upheld.” On consideration of the matter, I find no force in the contention raised by the learned counsel for the petitioner. It may be noticed, that as per Section 3 of the Punjab Registration of Money Lender's Act, 1938, the money lenders licence is required at the time of institution of the suit or presentation of the application for execution, only in case the party is a money lender. Once a plea raised by the petitioner, before the learned lower appellate Court in appeal against the judgment and decree of the learned trial Court was rejected, by holding, that it has not been proved that the decree-holder was a money lender. It was not open to raise the same plea before the learned executing Court, as learned executing Court cannot go behind the decree to record a different finding than the one recorded by the learned Court. The judgment relied upon by the petitioner is not applicable to the facts of the present case, as in the said case the factum of respondent being money lender, was admitted and decree-holder had not sent any accounts to the petitioners before filing the suit. In the case in hand the plea that respondent is a money lender stood rejected, in main appeal. No fault can be found with the order passed by the learned C.R. No. 1227 of 2009 7 executing Court, which may call for any interference by this Court. No merit. Dismissed. 13.7.2009 ( VINOD K. SHARMA ) 'sp' JUDGE