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2021 (6) TMI 955 - HC - Indian LawsDishonor of cheque - seeking an order of injunction against the respondent in respect of money lent and advanced by the petitioner - Section 13 of The Bengal Money-Lenders Act, 1940 - HELD THAT:- Section 13 of The Bengal Money-Lenders Act, 1940, prohibits a court from passing a decree or order in favour of a money-lender in a suit filed by a money-lender for the recovery of a loan advanced, unless the court is satisfied that the moneylender held an effective licence at the time of granting the loan or advancing any part thereof. The other parts of Section 13 are not relevant for the purposes of this application. Section 2(12) of the said Act defines a "loan" as an advance, whether on any monetary terms or in kind, made on condition of repayment with interest and includes any transaction which is in substance a loan but does not include an advance made on the basis of a negotiable instrument as defined in the Negotiable Instruments Act, 1881, other than a promissory note as provided under sub-clause (12)(e). While both sections intend to give a protective cover to the petitioner at the time of institution of and during pendency of the suit in terms of preserving the property which would afford relief to the petitioner in real terms, there is an important distinction in the nature of the property contemplated under the provisions. Under Order XXXIX Rule 1, the property sought to be preserved is 'property in dispute in a suit', whereas, it is the respondent's property under Order XXXVIII Rule 5-the words used are 'his property' following specific reference to ''the respondent, with intent to obstruct or delay''. The distinction reinforces the need to preserve the suit property till final orders are passed in the former and to secure the petitioner for facilitating execution of a decree in the latter - The rigours of Order XXXVIII Rule 5 are not applicable in the present case, at least at this stage, simply because the petitioner is not seeking attachment of any of the properties of the respondent. All that the petitioner seeks is protection, until the matter is heard on affidavits, from its monetary claim against the respondent being rendered infructuous. There is no basis therefore to expand the contours of what the petitioner prays for and factor in attachment when a restraint, simpliciter, would do. The petitioner has established the first of the troika of a prima facie case by establishing the fact of money being lent and advanced to the respondent and the respondent acknowledging receipt of the same by making payment of the interest component to the petitioner after deducting tax at source on the said payments. The interest payments could not have been made in a vacuum but in connection with the loan given to the respondent by the petitioner. These facts are sufficient to hold that the petitioner has a prima facie case. The complete denial of the loan by the respondent in its reply dated 23rd July 2019 to the Notice of Demand of the petitioner, sets off alarm-bells calling for a measure of protection to the petitioner - The respondent's total denial supports the second and third tests of balance of convenience and irreparable injury warranting passing of a temporary injunction in favour of the petitioner. The respondent will not suffer any injury since the petitioner does not seek an order of attachment of the assets of the respondent. Having found that the petitioner has made out a satisfactory case under Order XXXIX Rule 1 of The Code of Civil Procedure, there shall be an order restraining the respondent from dealing with or disposing of, alienating or encumbering any of his immovable assets and properties without leave of the Court until the matter is finally heard out on affidavits or until further orders are passed at the instance of any of the parties before the Court - Affidavit-in-opposition to be filed within 3 weeks from date, reply within 2 weeks thereafter. List the matter after 5 weeks.
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