1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUIT NO. 2004 OF 1999 Smt. Padma Ravindra Sethna ...Plaintiffs versus M/s. Dhirajlal Mangaldas & Co. and ors. .....Defendant Mr. H.C. Mehra for the plaintiff Mr. V.L. Desai for defendant. CORAM: A.P. DESHPANDE, J. DATED: 05TH MAY, 2008. P.C.: 1. By instituting the instant suit, the plaintiff claims a money decree for a sum of Rs. 5,44,014/-, as per the particulars of claim together with interest on the principal sum of Rs. 5 lacs at the rate of 21% per annum from the date of filing of the suit till realisation of the amount. 2. It is the case of the Plaintiff that the defendant no.1 is the partnership firm of which the defendant nos. 2, 3 and 4 are partners. The defendants are dealing in and carrying on business of exports and imports and grocery spices merchants and commission agents . According to the plaintiff, during the period from 13-12-1997 to 31-1-1998 from time to time the plaintiff deposited an aggregate sum of Rs. Five lacs with the defendant no.1. The amount was deposited by cheques drawn in favour of 2 the defendant no.1 as indicated hereinbelow. 1. On 13-12-1997 Rs. 1 lac 2. On 16-12-1997 Rs. 95,000/- 3. On 16-12-1997 Rs. 1,05,000/- 4. On 3-1-1998 Rs. 1,10,000/- 5. On 3-1-1998 Rs. 90,000/- 3. Acknowledging the receipt of the cheques, the defendant has passed receipts in favour of the plaintiff and thereunder has also agreed to pay the interest at the rate of 21% per annum to the plaintiff or to her husband. Five separate receipts were issued by the defendant no.1 covering the above referred five deposits. The documents, titled as receipt mentions that the defendant no.1 has received the amount stipulating the rate of interest as 1.75 p.m. (works out 21% per annum). The defendant no.1 did pay by cheque to the plaintiff the amount of interest after deducting applicable TDS upto 30-9-1998. The defendants did not pay any interest after 1st October 1998 and thus the plaintiff served a notice demanding principal amount so also the interest for the period for which the same was not paid. Despite the demand so made, the defendants did not bother to pay the principal amount so also the interest which prompted the plaintiff to institute the present suit. In this suit Rs. 5 lacs represent the principal amount and Rs. 44,014/- represent the interest component. 3 4. On the basis of the pleadings, the following issues came to be framed. i) Whether the suit is liable to be dismissed for non-joinder of the necessary party? ii) Does the plaintiff prove that the defendants agreed to pay the amount in exh. A to Exh.E to the plaintiff and interest thereon on demand ? Iii) Does the plaintiff prove that principal amount of Rs. 5,00,000/- and interest from 1-10-1990 to 3-3-1999 became due and payable by the defendants to plaintiff on 1-10-1998? iv) Does the plaintiff prove that she made repeated requests and demands for payment of Rs. 5,00,000/- and interest thereon prior to 1.10.1998? v) Does the plaintiff prove that a sum of Rs. 5,00,000/- and interest of Rs.44,014/- as per particulars of claim, Exh.G to the plaint because payable by the defendants to the plaintiff? vi) Does the plaintiff prove that any cause of action aross to her to file the suit? Vii) Whether the document Exh. A to E to the plaint are inmsufficiently stamped and not admissible in evidence under the Bombay Stamp Act 1958 and/or Indian Stamp Act 1899? viii) 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 Lender' s Act 1946? ix) Do the defendants prove that the suit is premature and liable to be dismissed? x) What order and decree ? 5. The defendants by filing the written statement have 4 opposed the claim made in the suit by raising certain technical objections but have not disputed the receipt of aggregate anmount of Rs. 5 lacs by way of deposit on payment of interest. The defendants have contended that as per the agreement between the plaintiff and the defendants, the deposit of the amount was payable when able basis as there was financial crunch in the market. The contentions raised by the defendants are set out hereinbelow. i) That the amount was not payable on demand but was kept with the defendants for long term. (ii) That the plaintiff is a 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. (iv) That the plaintiff's husband could not have deposed the facts under the Power of Attorney. 6. Husband of the plaintiff entereed the witness box and has stated that he is conversant with the facts involved in the suit and as he has personal knowledge, so he has deposed the facts pleaded in the plaint. The defendants have not entered the witness box. On the basis of the evidence led by the plaintiff, it is clearly established that the plaintiff did deposit a sum of Rs. 5 lacs with the defendant no.1 in between the period from 13-12-1997 to 3-1-1998 as detailed in paragraph 2 of the plaint, on the defendants agreeing to pay the interest at the rate of 1.75 per month21% per annum). The plaintiff has also established that she had received interest at the agreed deed till the end of September 5 1998. Hence in the suit the plaintiff has claimed the principal amount of Rs. 5 lacs together with interest from 1st October 1998 onwards. In the first place the counsel for the defendants contended that the amount was not payable on demand but the same was kept in deposit with the defendants, on the “payable when able” basis. No doubt the acknowledgment receipts issued by defendants to the plaintiff does not make any mention in regard to the time by which the amount of deposit would be repaid. However, in the absence of any contract, the amount due and recoverable by the plaintiff would be very much payable on demand. Thus the defendants are liable for payment of the said amount as and when demanded. Despite repeated demands made by the plaintiff, the defendants did not pay the amount. Hence there is no substance in the submission made by the learned counsel for the defendants. 7. The next submission is that the plaintiff is a money lender and thus the suit filed by her cannot be decreed, in view of the provisions of section 10 of the Bombay Money Lenders Act 1946. It is obvious that the burdern to establish that the plaintiff is a money lender would be on the defendant for the reason that the defendants are claiming benefit under the provisions of Bombay Money Lenders Act. The defendants have not led any evidence. However, counsel for the defendants tried to contend that the plaintiff is a mioney lender by inviting attention of this court to the fact that the plaintiff' s husband has instituted a suit which involves one transaction and five other transactions constitutes subject matter of the present suit.. Thus having regard to the 6 number oif transactions, a contention is put forth that the plaintiff is a money lender. It is re-iterated that the defendant has not led any evidence to substantive the contention that the plaintiff carries on 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 Vs. Seth Brindaban, reported in AIR 1970 SC 2007 it is submitted that the expression money lender would exclude isolated transactions as money lending transactions. To brand a person as money lender he must be shown to be in the habit of advancing loans as a matter of regular business and isoklated 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 reoported in the case of Nandiram Kaniram & ors. Vs. N.B. Rahatekar, reported in 1994 Mh.L.J. 380 so also a judgment reported in the case of M/s Rushabh Precision Bearings Ltd. Vs. M/s. Marine Container Services (India) Pvt. Ltd. 1999(3) Bom.C.R. 760. From the evidence on record it is clear that the plaintiff is not a money lender and hence bar of section 10 does not apply. The present suit is very much maintainable as a summary suit as it is based on written contract which document is in the form of a receipt. It bears revenue stamp of Rs. 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 suit 7 deserves to be decreed. In the result I pass the following order. 8. Plaintiff' s suit for recovery of an amount Rs. 5,44,014/- is decreed. Defendants are jointly and severally directed to pay a sum of Rs. 5,44,014s/- 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. (A.P. DESHPANDE J.)