Buttrose J:

The substantial question for determination in this appeal turns on the construction of s. 24 of the Moneylenders Ordinance, 1959 (No. 58 of 1959) hereinafter referred to as the new Ordinance.

The section reads as follows:

24.(1) Where in any proceedings taken in any Court by a moneylender for the recovery of any money lent whether before or after the coming into operation of this Ordinance or the enforcement of any agreement or security made or taken in respect of money lent either before or after the coming into operation of this Ordinance any dispute arises as to the amount of the money lent to and received by the borrower the burden of proving such amount shall be on the moneylender.

(2) The fact that the borrower has signed a note or memorandum which complies with the provisions of s. 16 of this Ordinance and in which the amount of the money lent to and received by the borrower is set out shall not of itself raise any presumption that the amount of money so set out was actually lent to or received by the borrower.

The learned District Judge held that the section was retrospective in operation not only as regards moneylenders which, in my view, quite clearly it is, but also as regards persons who had ceased to be moneylenders prior to the new Ordinance coming into force.

The case for the appellant was that a man, who was a moneylender prior to the new Ordinance coming into force, but who has not taken out a licence thereunder or carried on business as a moneylender after it came into force does not come within the definition of moneylender. It was submitted that the section could only have retrospective effect with reference to those persons who are bound by the new Ordinance, i.e., moneylenders and not to those who are not.

The term "moneylender" is defined in s. 2 of the new Ordinance as follows:

'Moneylender' includes every person whose business is that of moneylending or who carries on or advertises or announces himself or holds himself out in any way as carrying on that business whether or not that person also possesses or earns property or money derived from sources other than the lending of money and whether or not that person carries on the business as a principal or as an agent ...

It was not in dispute that at the time when the loan was made the appellant was a moneylender within the meaning of the term as defined in the Moneylenders Ordinance (Ch. 193) hereinafter referred to as the old Ordinance.

Is the appellant a moneylender under the new Ordinance? Whether a person is or has been a moneylender within the meaning of the new Ordinance on or after 11 September 1959 when it came into force is a question of fact in each case. While the evidence is not as clear as it might be, it was, I think, sufficiently established that the appellant was not carrying on the business of a moneylender on or after 11 September 1959. In the endorsement on the Summons he is described as "an ex-moneylender on 11 September 1959" and in his evidence the appellant said that he was a "moneylender prior to 10 September 1959". It was never suggested in the Court below that the appellant had in fact carried on the business of a moneylender since the coming into operation of the new Ordinance. The learned District Judge treated and accepted the appellant as an ex-moneylender.

The position was therefore that on the coming into force of the new Ordinance the appellant apparently did not propose to continue his business of moneylending but only to collect his outstanding accounts as at that date. In the view I take that does not constitute a carrying on of the business of a moneylender within the meaning of the new Ordinance nor is the appellant accordingly required to take out a licence merely to recover money previously lent by him. See Ramanuj Pandey V. Stephen. Of course, if he makes any fresh loans to, or enters into any new agreements with, a borrower he may be liable for carrying on business as a moneylender