( 1 ) THIS appeal has been filed by the original defendant of Civil suit No. 1428 of 1973 which was decided by learned Judge, City Civil court, Ahmedabad on 28-4-1978 whereby the suit filed by the respondent to recover an amount of Rs. 5,000. 00 with interest at the rate of 6% per annum from 9-4-1973 till full and final payment of the amount and costs is decreed.

( 2 ) THE case of the respondent-original plaintiff is that the respondentoriginal plaintiff is doing banking business at Ahmedabad and the appellantoriginal defendant is a resident of village Dharisana in Dehgam Taluka, has borrowed an amount of Rs. 5,000. 00 on 12/03/1970 for the purpose of business and for that purpose, he had given a bearer cheque dated 10/04/1970 which was not sent for payment to the bank at the request of the appellant. However, in spite of repeated demands, as the appellant failed to pay the amount, present suit has been filed.

( 3 ) IN the written statement Exh. 11, the appellant raised a number of pleas including the plea of limitation, jurisdiction, has inter alia contended that it is true that he had given the cheque for Rs. 5,000. 00 dated 10-4- 1970. However, according to the appellant, the same was given at the time of taking the loan and not subsequently. According to the appellant, in fact, rs. 4,550/- had been paid to him on 12-3-1970 and not Rs. 5,000. 00. The appellant has further stated that he has paid up the said amount by delivering wheats worth Rs. 2,000. 00 and millet grass bundles worth Rs. 2,700. 00 to the father of the respondent who was the Chairman of Ajod dairy, Ahmedabad.

( 4 ) IT appears that the parties have not pressed the issue pertaining to limitation, cheque for Rs. 5,000. 00 given on 10-4-1970 and interest claim of rs. 13,500/- from 10-4-1970 to 8-4-1973. The learned trial Judge by his impugned judgment and decree has held the issue of jurisdiction in favour of the respondent by holding that Ahmedabad Court has jurisdiction. The learned trial Judge has not believed the case of the appellant that the amount of Rs. 4,700. 00 was paid by delivering wheats and grass bundles. Regarding the bar of suit under the provisions of Bombay Money Lenders act, the learned trial Judge has answered the said issue also in the negative. In view of these findings, the learned trial Judge, as stated above, has decreed the suit in favour of the respondent.

( 5 ) THEREFORE, being aggrieved by the same, the appellant-original defendant has filed the present appeal.

( 6 ) MR. Shroff, learned Advocate for Mr. K. G. Sheth, beside arguing the case on merits, raised a contention that it is an error committed by the trial Court in holding that the suit is not barred under the provisions of the Bombay Money Lenders Act as the appellant had taken money for the purpose of business and as he has undertaken the carting contract of milk from Ajod Dairy, Ahmedabad. In the submission of Mr. Shroff, the said finding is contrary to the evidence on record inasmuch as the evidence on record would suggest that the respondent is undisputedly a money lender and was not having a valid licence and the amount advanced to the appellant was by way of loan and therefore, under the provisions of the said Act, the suit is required to be dismissed only on this ground. The respondent, though duly served, has not filed any appearance and therefore, I have to proceed with the appeal in absence of the respondent.

( 7 ) SECTION 2 (9) of the Bombay Money Lenders Act, 1946 (hereinafter referred to as the "act") reads as under :"2. In this Act, unless there is anything repugnant in the subject or context -xxx xxx xxx xxx (9) "loan" means an advance at interest whether of money or in kind, but does not include - (a) a deposit of money or other property in a Government Post Office Bank or in any other Bank or in a Company or with a Co-operative Society; (b) a loan to, or by, or a deposit with any society or association registered under the Societies Registration Act,