A money lender who is registered under the Orissa Money Lenders Act cannot maintain a suit for recovery of a loan advanced from his personal funds unless he has obtained a separate certificate of registration in respect of such loan.

JUDGMENT :

Narasimham, C.J. - This is an appeal by the Plaintiff against the judgment of the Subordinate Judge of Cuttack dismissing his suit for recovery of a sum of Rs. 10177.86 with interest from Defendants 1 and 2.

2. The suit was brought on the allegation that, on 3-10. 955 the Plaintiff gave a loan of Rs. 11,000/- to Defendant No. 1 in the presence of Defendant No. 3 and that by way of collateral security a handnote (ext. 2) was executed by Defendant No. 1 in favour of Defendant No. 3, agreeing to repay the said sum with interest at 6 percent per month (72 percent per annum). As the Plaintiff is not the bolder of the promissory note on the basis of the hand-note and hence he brought this suit on the basis of the loan which, according to him, was directly advanced by him to Defendant No. 1. The Plaintiff is a practising Advocate of Cuttack Bar. Defendant No. 3 is a Kabuli who was carrying on money-lending transactions in Orissa for some time and who admittedly left Orissa for Afganistan about 4 years ago. It is also admitted that Defendant No. 3 was a client both of the Plaintiff and of the Plaintiff's father Shri. M.S. Rao who is one of the senior Advocates of Cuttack. Defendant No. 1 was, at all material times, working as a contractor in the Hirakud Dam Project.

3. The main defence of Defendant No. 1 was that there was no relationship of creditor and debtor between him and the Plaintiff, that he took the loan directly from Defendant No. 3 made payments by installments on several occasions and ultimately paid up the entire sum due. It was suggested that instead of returning the hand-note to him, Defendant No. 3 fraudulently handed it over to the Plaintiff and went away to Afganistan. Defendant No. 3 did not file any written statement and was ex parte throughout.

4. The lower Court was not inclined to accept the evidence of the Plaintiff to the effect that the loan was advanced by him to Defendant No. 1 and that there was no relationship of creditor and debtor between the two. He preferred the evidence of Defendant No. 1 on this point and held that the relationship of debtor and creditor existed only between Defendant No. 1 and Defendants No. 3. He was inclined to hold that Defendant No. 3 might pay received money from the Plaintiff before giving it as a loan to Defendant No. 1 and that might make the Plaintiff the creditor of Defendant No. 3 so far as that transaction was concerned, but that it would, furnish a cause of action for the Plaintiff against Defendant No. 3 only.

5. The, finding of the lower Court was challenged by Mr. Pal, on behalf of the, Plaintiff. But before dealing with the facts I shall discuss a preliminary objection regarding the maintainability of the spit, raised by Mr. Dasgupta for the Respondent. It is true that this objection was not specifically taken in the lower Court, but as it, is based on a pure question of law which arises out of the admissions made by the Plaintiff himself, Mr. Dasgupta was permitted to raise the same and both parties were fully heard.

6. In paragraph 1 of the plaint the Plaintiff stated as follows:

Plaintiff is a registered money-lender under the Orissa Money Lenders Act, (Certificate No. /23 dated 5-5-50/31-5-55 for more than Rs. 20,000/-. He is also the managing partner of the firm (M.S. Rao & Sons) which is a registered firm, and also registered under the Orissa Money Lenders Act bearing certificates 124/26/37 dated 31-5-1951, 28-3-1956 and 20-3-1961. The two certificates of registration namely 1st certificate dated 5-5.1950 (ext. l/a) and the second (renewal) certificate dated 31.5-1955 (ext. 1) bearing No. 1/23 have been proved in this case.

On the Plaintiff's averment in the plaint the firm of M.S. Rao & Sons of which he is the managing partner and which has a separate certificate of registration is a distinct legal entity from the Plaintiff, who is separately registered as a money-lender. While giving evidence in Court also he kept up this distinction between the firm M.S