Lichhman Since Deceased Through His Lrs v. Suresh Kumar Since Deceased Through His Lrs
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# " , "Moneylender" means a person, or a firm carrying on the business of advancing loans as defined in this Act, and shall include the legal representatives and the successorsin interest whether by inheritance, assignment or otherwise, of such person or firm; provided that nothing in this definition shall apply to - 78 a person who is the legal representative or is by inheritance the successorininterest of the estate of a deceased moneylender together with all his rights and liabilities; provided that such person only - (i) winds up the estate of such moneylender;
(ii) realises outstanding loans;
(iii) does not renew any existing loan, nor advance any fresh loan;
(b) a bona fide assignment by a moneylender of a single loan to any one other than the wife or husband of such assignor, as the case may be, or any person, who is descended from a common grandfather of the assignor. # $ :
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: " , "8. The only point seriously argued by Mr. Sibbal was the point that the plaintiff was a moneylender. Mr. Sibbal argued that it had been proved by evidence on the record that the plaintiff did moneylending systematically and continuously and it was the system and the continuity in his transactions which showed that he was carrying on business of advancing loans so as to come within the definition of a moneylender given in Clause (9) of Section 2 of the Punjab Registration of Moneylenders' Act III of 1938. Mr. Sibfaal quoted Halsbury's Laws of England, Vol. 23 page 181 and said it was the system and continuity in moneylending transactions Which made a person a moneylender. He cited a number of authorities
which, according to him, supported him in the finding to be given in this case that the plaintiff was moneylender. One of the authorities cited by him was 'Bonnard v. Dott', (1905) 92
1. T 822. In that case Kekewich J. said in one part of his judgment:
"Now, it appears from the evidence that the defendant has lent money again and again, and he writes letters in accordance with the usage of the money Jending class as though to the manner born, but that of itself, of course, is not sufficient to constitute him a money lender within the Act. To bring him within that Act he must be not merely a man who lends money, bub under Section 6 of the Act a man whose business is that of money lending."
In another part of his judgment he said:
"Now, I have heard the evidence of a good many gentlemen to whom the defendant has lent money from time to lime, and I take it that those cases are only samples, and that the defendant has also lent money to many other per son, and I take it that all those other transactions have been of a similar character to those we have heard about."
On the facts of that case Kekewich, J., came to the conclusion that the defendant was a moneylender.
9.
Another case that was cited by Mr. Sibbal, was, 'Sano Kashinath v. Patttto Sacuto', AIR 1942 Pat 384. In that case which was before a Division Bench Harries, C. J., quoted the case of 'Lttchfield v. Dreyfus', C1905) 1 KB 584, in which Farwell, J. Said.:
"But not every man who lends money at interest carries on the business of moneylending. Speaking generally, a man who carries on a moneylending business is one who is ready and willing to lend to all and sundry, provided, that they are from his point of view eligible. I do not, of course, mean that a money lender can evade the Act by limiting his clientele to these whom he chooses to designate as 'friends' or otherwise, it is a question of fact in each case.....So far as regards the few persons whom he has assisted since 1903, either by way of discounting bills of other
persons for them or by discountIng their own bills, it would be a straining of the language of the Act to hold that a man who so obliges friends is carrying on the business of a money lender. The Act was intended to apply only to persons who are really carrying on the business of money lending as a business, not to persons who lend money as an incident of another business or to a few old friends by way of friendship." Another judgment was also referred to in that case. That was a case of 'Edgelow v. Mac Eiwee', (1918) 1 КВ 205, McCardie, J., in that case observed:
"A man does not become a moneylender by reason of occasional loans to relations, friends or acquaintances, whether interest be charged or not. Charity and kindliness are not the basis of. usury. Nor does a man become a moneylender merely because he may upon one or several isolated occasions lend money to a stranger. There must be more than occasional and disconnected loans. There must be a business of moneylending, and the business' imports the notion of system, repetition and continuity..... The line of demarcation cannot be defined with closeness or indicated by any specific formula. Each case must depend on its own peculiar features. It is ever a question of degree."
Another case that was referred to in that judgment was a Full Bench judgment of the Allahabad High Court in the matter of Bhairo Dutt', AIR 1940 All 1, in which it was held 'that an element of continuity and habit is essential to constitute the exercise of a profession or business. Investments of his savings by an advocate do not necessarily amount to engagement in moneylending business, the more so when such investments are few and far between and are mostly made to relations and friends. Harries, C. J., applying the principles of the rulings before him and on the facts of that case held that the person they were dealing with was not a moneylender, in that case over a period of thirty years four advances had been made and in each case there appears to nave been special circumstances which caused the advance of money. Money did not appear to have been lent regularly, but
there were merely isolated transactions and made in very special circumstances. In view of the aforesaid interpretation, a person who carries money lending business is one who is ready and willing to lend to all and sundry." ;
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