IMPORTANT POINT
Money-lender or not in terms of definition under S. 3(6) of Money-Lending Act, financial help/assistance given was loan under S. 3(5) or not, cannot be said that issue can be decided as pure question of law.

Pradeep Kumar Singh Baghel, J.— This civil revision under Section 115 of the Code of Civil Procedure, 1908 is directed against the order dated 25th February, 2014 passed by the Additional Civil Judge (Senior Division), Court No.2, Aligarh in Original Suit No.1381 of 2011 (Anil Kumar v. Sanjay Jain), whereby the Court below has rejected the application (177-Ga2) moved by the revisionist-defendant in the suit and refused to decide the preliminary issue.

2. The essential facts are that the plaintiff-respondent instituted Original Suit No.1381 of 2011 (A nil Kumar Sharma v. Sanjay Jain) in the Court of the Civil Judge (Senior Division), Aligarh seeking a relief for the recovery of money for a sum of Rs.12,00,000 alongwith the interest.

3. The case of the plaintiff is that the plaintiff and the defendant were on the good terms and they had a long standing family relationship. The revisionist-defendant expressed before the plaintiff his some financial constraints in running his business, thus, he was in the need of financial help. The plaintiff extended his helping hand to the defendant by giving a loan of Rs.14,00,000 on the different dates. The revisionist- defendant has returned an amount of Rs.2,00,000 thereof. However, when the revisionist-defendant did not pay the remaining outstanding amount, the plaintiff made repeated requests therefor, thereupon the revisionist-defendant got annoyed and he threatened the plaintiff of dire consequences. Having no option left, the plaintiff made a complaint against the revisionist-defendant to the Superintendent of Police, City, Aligarh. On the said complaint, the revisionist-defendant was called upon by the Police and in presence of the Superintendent of Police (City) he admitted Rs.12,00,000 to be outstanding and acknowledged it in writing on 10th June, 2009. On the said document, the brother of the revisionist-defendant has also made his signature. It was also signed by the two witnesses. In the said acknowledgment the revisionist -defendant had assured that he would pay back Rs.1,00,000 within 15 days and rest of the amount shall be paid within a year. It is stated that, however, the revisionist-defendant failed to honour his commitment. Thus, having no other option, the plaintiff filed a suit, being Original Suit No.1381 of 2011, against the defendant for recovery of a sum of Rs.12,00,000 and the interest thereon with effect from 25th May, 2009. The plaintiff also moved an application under Order XXXVIII Rule 5 of the Code of Civil Procedure, 1908 (for short, the “CPC”), wherein he sought attachment of the shop as well as residential flat of the revisionist-defendant on the apprehension that he may abscond from the district.

4. The trial Court issued summons to the revisionist-defendant and directed him to furnish security of the amount sought to be recovered and fixed 26th August, 2011 as the next date. On the next date i.e. 29th August, 2011 the trial Court directed the attachment of the property of the revisionist. It is stated that said order of the trial Court was challenged before this Court in First Appeal From Order No.3303 of 2011 (Sanjay Jain @ Sanjay Kumar Jain v. Anil Kumar Sharma), which was allowed by this Court on 10th April, 2012 and the order of attachment was set aside.

5. The revisionist-defendant filed his written statement in the suit and denied the claim of the plaintiff.

6. On 22nd November, 2011 seven issues were framed by the trial Court. The Issue Nos.3 and 4 are relevant for the instant revision, therefore, they are extracted below:

(Matter in other language)

7. The revisionist-defendant moved an application, vide Paper No.46-C2, for deciding the Issue Nos.3 and 4 as preliminary issue. Said application was rejected by the trial Court vide order dated 5th January, 2012 taking the view that Issue Nos.3 and 4 shall be decided after taking evidence of the parties. Aggrieved by the order dated 5th January, 2012 the revisionist-defendant preferred Civil Revi