| |
2 |
In this Act, unless there is anything
repugnant in the subject or context, -
[(a) "Bank" means - |
| (i) |
a banking company as defined
in the Banking Regulation Act, 1949; |
10 of 1949 |
| (ii) |
the State Bank of India, constituted
under the State Bank of India Act, 1955; |
23 of 1955 |
| (iii) |
a subsidiary bank as defined
in the State Bank of India (Subsidiary
Banks) Act, 1959;
|
38 of 1959 |
| (iv) |
a corresponding new bank constituted
under the Banking Companies, (Acquisition and Transfer of Undertakings)
Act, 1970; |
5 of 1970 |
| (v) |
the Industrial Development Bank
of India, constituted under the Industrial Development Bank of India
Act, 1964; |
18 of 1964 |
| (vi) |
the Agricultural Refinance Corporation,
constituted under the Agricultural Refinance Corporation Act, 1963;
|
10 of 1963 |
| (vii) |
the Life Insurance Corporation
of India, constituted under the Life
Insurance Corporation Act, 1956;
|
31 of 1956 |
| (viii) |
the Industrial Finance Corporation
of India, constituted under the
Industrial Finance Corporation Act, 1948;
|
15 of 1946 |
| (ix) |
the Orissa State Financial Corporation,
constituted under the State
Financial Corporation Act, 1951;
|
63 of 1951 |
| (x) |
any other banking or financial
institution notified in this behalf by
the State Government;]4 |
| 1. |
LEGISLATIVE PAPERS -
For Statement of Objects and Reasons, see Orissa Gazette, 1938 Extraordinary,
P.20; for Report of the Select Committee, see Orissa Gazette, 1939
Pt. XI, P.2, and for Proceedings in Council see Proceedings of the
Orissa Legislative Assembly, 1938-39, Vol. III, P. 127. |
| 2. |
Sections 1,2,3,9 to 17,
20, 21,22,23,24,25,26 and 27 apply to all the partially-excluded areas
in the Province of Orissa with effect from the 15th April 1940 subject
to certain modifications (No. 1120-IVA-1-40-D., dated the 6th April
1940). |
| 3. |
Sections 1, 2, 3,9, 10,
11, 12, 13, (16 so far as it applies sections 10,11, 12 and 13 to
pending suits, appeals and execution proceedings mentioned therein)
17, 20, 21,22, 25 and 27 shall come into force throughout the State
of Orissa on the 1st July 1939 see Orissa Gazette, 1939, Part III,
page 212.
Sections 14,15, 16 (except in So far as it applies sections 10, 11,
12 and 13 to pending suits, appeals and execution proceeding mentioned
therein) 23, 24 and 26 came into force from the 1st December 1939
throughout the State of Orissa, see Orissa Gazette, 1939, Part III,
pp. 381-382.
|
| 4. |
Substituted by the Orissa Money-Lenders (Amendment) Act, 1975 (Orissa
Act 54 of 175),s. 2 (i).
|
| |
|
(b) |
"business of money-lending"
means the business of advancing loans; |
| |
|
(c) |
"capital"
means that which a money-lender invests in the business of money-lending
whether in money or in kind; |
| |
|
[(d) |
"company"
means a company registered under the Companies Act, 1956;]1 |
1 of 1956 |
| |
|
[(e) |
"co-operative society"
means. a society registered or deemed to have been registered under
the Orissa Co-operative Societies Act, 1962 and includes a land development
bank as defined in that Act;]2 |
Orissa Act 2 of 1963 |
| |
|
(f) |
"Court"
includes a Court acting in the exercise of insolvency jurisdiction
and also a Court or other authority to which a decree is sent for
execution; |
| |
|
[(f-1) |
"debtor"
means a person to whom a loan is advanced and includes his successor-in-interest
or surety;] 3 |
| |
|
4.
(g) |
"decree"
means a decree as defined by the Code of Civil procedure, 1908 and
includes 6.
[decree passed by an Agency Court under the Agency Rules] an award
enforceable as a decrees of a Court under the Indian Arbitration Act,
1899 and also preliminary decrees in the case of secured loans; |
5.
(g) |
"decree"
means a decree as defined by the Code of Civil Procedure, 1908 and
includes an award enforceable as a decree of a Court under the Indian
Arbitration Act, 1899 and also preliminary decrees and final decrees
in the case of secured loans; |
V of
1908
IX of 1899
|
| |
|
(h) |
"interest"
means rate of interest and includes the return to be made over and
above what was actually lent whether the same is charged or sought
to be recovered pacifically by way of interest or otherwise; |
| |
|
(i) |
"loan" means
an advance whether of money or in kind on interest made by a money-lender
and shall include a transaction on a document bearing interest executed
in respect of a past liability and any transaction which, in substance,
is a loan, but shall not include - |
| |
|
(1) |
a loan advanced by the State
Government or by any local body authorized by the State Government
or by a Co-operative Society; |
| |
|
(2) |
a deposit of money in a Post
Office Savings Bank or a deposit of money or other property in any
other bank or in a company or with a Co-operative Society; |
| |
|
(3) |
the amount, or the proportionate
amount, as the case may be, payable under a mortgage by the purchaser
at a sale in execution of a decree of a Court or otherwise, of the
whole or part of the properties subject to a mortgage, the purchase
having been made prior to the coming into force of this Act; |
| ` |
|
(4) |
any loan or loans due to a widow
on the 1st February 1930, who on that date did not own any other property
provided that the principal amount of the loan or loans does not exceed
rupees two thousand. |
| |
|
1. |
Substituted by ibid.,
s. 2 (ii) |
| |
|
2. |
Substituted by ibid.,
s. 2 (iii) |
| |
|
3. |
Inserted by ibid., s.
2 (iv) |
| |
|
4. |
This clause is in force
in this form in the partially-excluded areas of the Province, see
the Orissa Laws Validating Regulation, 1942 (Or. Reg. I of 1943),
s. 2 and Second Schedule. |
| |
|
5. |
This clause is in force
in this form in the areas other than the partially-excluded areas
of theProvince, see ibid.
The difference between the two clauses lies in the words printed in
italics.
|
| |
|
6. |
Inserted by the Orissa
Laws Validating Regulation,1942(Or.Reg.I of 1943),s.2 and second Schedule. |
| Explanations |
|
(1) |
A bond bearing interest executed
in respect of goods taken on credit constitutes a loan. |
| |
|
(2) |
A supply of goods- |
| |
|
(i) |
on khata carrying interest up
to six and a quarter per centum simple per annum, or |
| |
|
(ii) |
on credit,is not a loan. |
| |
|
(3) |
For the purposes of this clause
a "purchaser" includes his legal representatives
and successors-in-interest, whether by inheritance, assignment or
otherwise. - |
| |
|
(4) |
For the purposes of this clause,
the house in which the creditor widow lived or any furniture therein
or her household utensils, wearing apparel, jewellery or such like
personal belongings shall not be regarded as property. |
| |
|
[(j) |
"money-lender"
means a person whose business is that of advancing loans but does
not include a bank or a co-operative society and the expression "money-lending"
shall be construed accordingly;]1 |
| |
|
(k) |
"Prescribed"
means prescribed by rules made under this Act; |
| |
|
(l) |
"principal"
means in relation to a loan the amount actually lent to the
debtor; |
| |
|
(m) |
"registered money-lender"
means a person to whom a registration certificate has been granted
under section 5, and shall include a Hindu undivided family and the
legal representatives and successors-in-interest, whether by inheritance,
assignment or otherwise, of a registered money-lender; |
| |
|
(n) |
"rules"
means rules made under this Act; |
| |
|
(o) |
"secured loan"
means a loan for which the money-lender holds a mortgage, charge,
lien, or pledge on the property of the debtor or any part thereof
as a security for that loan; |
| |
|
(p) |
"Sub-Registrar"
means a Sub-Registrar appointed under the Indian
Registration Act, 1908;
|
XVI of 1908 |
| |
|
(q) |
"suit"
includes an appeal; 2 |
| |
|
[(q-l) |
"Tahasildar"
includes an Additional Tahasildar ;]3 |
| |
|
(r) |
"unsecured loan"
means any loan other than a secured loan. |
| |
|
1. |
Substituted by the Orissa
Money-Lenders (Amendment) Act, 1975 (Orissa Act 54 of 175),s. 2 (v). |
| |
|
2. |
Omitted by the Orissa
Money-Lenders (Amendment) Act, 1976 (Orissa Act 32 of 1976) s. 2(a). |
| |
|
3. |
Inserted by ibid., s.
2(b). |
| Power of State Government
to exempt any money-lender or class of money-lenders or any class
of loans from all or any of the provisions of this Act. |
3. |
|
The State Government
may, by notification 1
for any special reason or reasons to be stated in such notification,
exempt any money-lender or class of money-lenders or any class of
loans in the whole or any part of the State of Orissa from the operation
of all or any of the provisions of this Act. |
| |
|
1(i) |
See Notification
No. 7284-VI-J-3/52-Judl., dated the 27th October 1952 in the Orissa
Gazette, Part III, Page 22. |
| |
|
(ii) |
See Notification
No. 4242-IIJ.-137/58-Judl., dated the 9th July 1959 in the Orissa
Gazette, Extraordinary, dated the 11th July 1959. |
CHAPTER
II
REGISTRATION OF MONEY-LENDBRS AND ACCOUNTS TO BE KEPT BY MONEY-LENDERS
|
| |
[4. |
|
No person shall carry on the
business of money-lending after the 22nd day of November, 1975 unless
he is registered as a money-lender under this Act. |
| |
4.A |
(1) |
Every Sub-Registrar shall maintain
a register of money-lenders in such form and containing such particulars
as may be prescribed. |
| |
|
(2) |
Such register shall be deemed
to be a public document within the meaning of the Indian Evidence
Act, 1872. ]1 |
| |
|
1. |
Substituted by the Orissa Money-Lenders
(Amendment) Act, 1975 (Orissa Act 54 of 1975), s. 3. |
| |
5. |
(1) |
Any person may make an application
to be registered as a money-lender. Every such application shall be
in writing and shall state |
| |
|
(a) |
the name and address of the applicant; |
| |
|
(b) |
the name and style under which
he carried on or desires to carry on business as a money-lender; |
| |
|
(c) |
the principal place of his business
and the branches thereof, if any; |
| |
|
(d) |
whether any certificate of registration
previously granted to him under this Act has been cancelled ; and |
| |
|
(e) |
such other particulars as may
be prescribed. |
| |
|
(2) (a) |
Every application made under sub-section
(I) shall be accompanied by the prescribed registration fee and shall
be presented to the Sub-Registrar within whose jurisdiction the principal
place of business referred to in clause (c) of sub- section (1) is
situate. |
| |
|
(b) |
Any such application, which is
not accompanied by the prescribed registration fee or does not contain
the particulars specified in sub-section (1), shall be summarily rejected. |
| |
|
(3) |
The State Government may by
rules prescribe for different classes of money-lenders and for different
areas a registration fee [xxxxx]1
to be paid by an applicant for registration;
Provided that the State Government may, by notification, exempt
any person or class of persons from the payment of the registration
fee either generally or in any specified area. |
| |
|
[ (4) |
On receipt of an application
under clause (0) of sub-section (2) the Sub-Registrar shall, except
where a certificate previously granted to the applicant has been cancelled
under this Act and the order of cancellation is in force or as the
case may be, the period for which the applicant has been disqualified
to be registered as a money-lender has not expired, grant a registration
certificate in the prescribed form to the applicant. ]2 |
| |
|
1. |
Substituted by the Orissa
Money-Lenders (Amendment) Act, 1975 (Orissa Act 54 of 1975), s. 3. |
| |
|
2. |
Substituted by the Orissa
Money-Lenders (Amendment) Act, 1975 (Orissa Act 54 or 1975), s. 4. |
| Duration and Renewal
of Registration certificate. |
[6. |
(1) |
A registration certificate granted
under section 5 shall, unless sooner cancelled, remain in force for
five years from the date on which it is granted and may be renewed
from time to time for a period of five years at a time. |
| |
|
(2) |
The provisions contained in section
5 shall apply in relation to the renewal of a registration certificate,
as they apply in relation to the grant of a registration certificate.
]1. |
| |
|
1. |
Substituted by ibid.,
s. 5. |
| Registered money-lenders
to maintain accounrts and give receipts. |
7. |
|
Every registered money-lender
shall in respect of every loan advanced by him after the commencement
of this Act and every transaction made by him after the commencement
of this Act relating to any loan advanced by him before the commencement
of this Act- |
| |
|
(a) |
" regularly record and maintain,
or cause to be recorded and maintained" an account showing for
each debtor- |
| |
|
(i) |
the date of the loan, the amount
of the principal of the loan and the rate per centum per annum of
interest charged on the loan; |
| |
|
(ii) |
the amount of every payment received
by the money-lender in respect of the loan, and the date of such payment;
and |
| |
|
(iii) |
any other terms which may be
agreed on between the money lender and the debtor; |
| |
|
(b) |
give to the debtor, or his agent,
a receipt for every sum paid by, or on behalf of, the debtor duly
signed and, if necessary, stamped at the time of such payment; or,
within a reasonable time after it. The money-lender shall also, on
demand, permit the debtor or his agent to endorse such payment on
the document, if any, evidencing the loan; and |
| |
|
(c) |
give to the debtor a signed receipt
for every pawned article with its general description, immediately
after it is pawned, mentioning the amount for which it is pawned,
the rate of interest charged per centum per annum and other particulars
as may be prescribed. |
| [
CHAPTER II-A]
GENERAL PROVISIONS |
| Maximum rate of Interest |
7-A |
|
No money-lender shall charge interest
on any loan advanced by him at a rate exceeding- |
| |
|
(a) |
nine percent per annum simple
interest, where the loan is secured ;]and |
| |
|
(b) |
twelve percent per annum simple
interest, where the loan is not secured. |
| Inspection |
7-B |
(1) |
Any Sub divisional Officer and
any Tahasildar may, at any time, with
such assistance as he thinks necessary, enter any premises within
his jurisdiction in which any person carries on business as a money-lender
and inspect the books, accounts, records, files, documents, safes,
vaults and pledges in such premises.
|
| |
|
(2) |
The Sub divisional Officer or
the Tahasildar shall have the authority to require any person whose
testimony he may require regarding any loan or any money-lending business,
to appear before him or to produce or cause to be produced any document
and to examine such person on oath.]1. |
| |
|
[ (3) |
While making an inspection under
sub-section (1), the inspecting officer may seize and take to his
office for further investigation such books, accounts, records, files
and documents as he considers necessary after giving to the person
from whose custody they are seized, a receipt describing the books,
accounts, records, files and documents so seized. |
| |
|
(4) |
The inspecting officer shall,
within seven days of the seizure and removal of the books, accounts,
records, files and documents from the premises, return them to the
person from whose custody they were removed, unless they are required
to be made over to the police or to be produced in a Court.]2 |
| Maximum amount recoverable
on loans |
[7-C |
|
No money-lender shall recover
towards the interest in respect of any loan advanced by him, an amount
in excess of the amount of the principal. |
| Discharge of loan on
payment of double the amount of the Principal |
7-D. |
|
Any loan in respect of which the
money-lender has realised from the debtor an amount equal to, or more
than, twice the amount of the principal, shall stand discharged and
the amount, if, any, so realised in excess of twice the amount of
loan shall be refunded by the money-lender to the debtor.]3 |
| |
|
1. |
Inserted the by Orissa
Money-Lenders (Amnendment) Act, 1975 (Orissa Act 54 of 1975), s.6 |
| |
|
2. |
Inserted by the Orissa
Money-Lenders (Amendment) Act, 1976 (Orissa Act 32 of 1976), s. 4 |
| |
|
3. |
Inserted by the Orissa
Money-Lenders (Amendment) Act, 1976 (Orissa Act 32 of 1976), s. 4
|
| CHAPTER-III
PROVISIONS RELATING TO SUITS IN RESPECT OF LOANS AND EXECUTION OF
DECREES |
| Suit for recovery of
loan maintainable by registered money-lenders only. |
8. |
|
A money-lender shall not be entitled
to institute a suit for the recovery of a loan advanced by him after
the date on which this section comes into force: unless he was registered
under this Act at the time when such loan was
advanced:
Provided that a money-lender shall be entitled to institute a suit
to recover a loan advanced by him at any time in the course of [two
years]1 after the date
on which this section comes into force, if he is granted a certificate
of registration under section 5 at any time before the expiration
of the [ said years ]2.
|
| |
|
1. |
Substituted by the Orissa
Money-Lenders (Amendment) Act, 1951 (Orissa Act XXIV of 1951, s. 2
for "a year". |
| |
|
2. |
Substituted by ibid for
"said year". |
| Maximum
rates at which interest may be decreed
|
9. |
|
Notwithstanding anything to
the contrary contained in any other law or in any thing having the
force of law or in any contract, no Court shall, in any suit [whether
brought by a money-lender or by any other person]1
in respect of a loan advanced after the commencement of this Act,
pass a decree for interest at rates exceeding 9 per centum simple
per annum in the cases of a secured
loan and 12 per centum simple per annum in the case of unsecured
loan:
[* * * * * * * *]2 |
| |
|
1. |
Substituted by the Orissa
Money-lenders (Amendment) Act, 1947 (Orissa Act XVIII 1947),s. 3 for
"brought by a money-lender". |
| |
|
2. |
Deleted by the Orissa
Money-Lenders (Amendment) Act, 1975 (Orissa Act 54 of 1915)s. 7. |
| Maximum amount of interest
which may be decreed and appropriation exceeds interest towards loans |
10. |
(1) |
Notwithstanding anything to the
contrary contained in any other law or in anything having the force
of law or in any contract, no Court shall, in any suit [whether brought
by a money-lender or by any otter person]1
in respect of a loan advanced before or after the commencement of
this Act, pass a decree for an amount of interest for the period preceding
the institution of the suit which, together with any amount already
realised as interest through Court or otherwise is greater than the
amount of the loan originally advanced. |
| |
|
(2) |
Where, in any suit, as is referred
to in sub-section (1), it is found that the amount already realised
as interest through Court or otherwise, for the period preceding the
institution of the suit it greater that the amount of the loan originally
advanced, so much of the said amount of interest as is in excess of
the loan shall be appropriated toward the satisfaction of the loan
and the Court shall pass a decree for the payment of the balance of
the loan, if any. |
| |
|
[(3) |
Where a decree passed by a Court
on the 1st April 1936 or thereafter on the basis of a loan remains
unsatisfied in whole or in part on the date3
on which the Orissa Monev-Lenders (Amendment) Act, 1947, comes into
force, the Court which passed the decree or the court or other authority'
to which the decree is sent for execution shall, on the application
of the judgment-debtor, exercise the powers specified in sub-section
(2) and the decree shall be modified accordingly. ]2
|
Orissa Act XVII of 1947 |
| |
|
1. |
Deleted by the Orissa
Money-Lenders (Amendment) Act, 1975 (Orissa Act 54 of 1915)s. 7. |
| |
|
2. |
Inserted by the Orissa
Money-Lenders (Amendment) Act, 1947 (Or Act XVIII of 1947), s.4 (ii). |
| |
|
3. |
This Act came into force
on the IIth June 1947, see Orissa Gazette, Extraordinary of even date. |
| Powers to reopen certain
transcations and appropriate excess interest towards loan. |
11 |
(1) |
In any suit [whether
brought by a money-lender or by any other ]1
in respect of a loan advanced before the commencement of this Act,
the Court shall exercise all or any of the following powers as may
be applicable to it, namely:- |
| |
|
2[(i)
|
reopen the transaction, take
an account between the parties and relieve the debtor of all liability
in respect of any interest in excess of nine per centum simple per
annum in the case of a secured loan other than a loan of grain twelve
per centum simple per annum in the case of a unsecured loan other
than a loan of grain and loan of grain and twenty-five per centum
simple per annum in the case of a loan of grain;
|
3[(i)
|
reopen the transaction,
take an account between the parties and relieve the debtor of all
liabilities in respect of any interest in excess of nine per centum
simple per annum in the case of a secured loan and twelve centum simple
per annum in the case or an unsecured loan ;] |
| |
|
2[(ii) |
notwithstanding any agreement
purporting to close previous dealings and to create a new obligation,
reopen any account already taken between them and relieve the debtor
of all liability in respect of any interest, in excess of nine per
centum simple per annum in the case of a secured loan other than a
loan of grain and twelve per centum simple per annum in the case of
an unsecured loan other than a loan of grain and twenty-five five
per centum simple per annum in the case of a loan of grain. ]
|
3[(ii)
|
Notwithstanding any
agreement purporting to close previous dealings and to create a new
obligation, reopen any account already taken between them and relieve
the debtor or of all liability in respect of any interest, in excess
of nine per centum simple per annum in the case of a secured loan
and twelve per centum simple per annum in the case of an unsecured
loan.] |
| |
|
(iii) |
appropriate excess
interest referred to in clauses (i) and (ii) realised through Court
or otherwise towards the satisfaction of the loan ; |
| |
|
(iv) |
set aside either
wholly or in part or revise or alter any security given or
agreement made in respect of any loan, and, if the money-!ender has
parted with the security order him to indemnify the debtor in such
manner and to such extent as it may deem just:
Provided that nothing contained in this sub-section shall be deemed
to require the creditor to refund any sum which has been paid to him.
|
| |
|
(2) |
Where a decree passed
by a Court on the 1st April, 1936 or thereafter, on the basis of a
loan, remains unsatisfied in whole or in part on the date on which
this Act comes into force the Court which passed the decree, or the
Court or other authority
to which a decree is sent for execution [shall]4
on the application of the judgment-debtor: exercise
all or any of the powers specified in sub-section (1).
|
| |
|
1. |
Substituted by the Orissa
Money-Lenders Amendment) Act, 1947 (Or. Act XVIII of 1947), s .5 (i). |
| |
|
2. |
This clause is in force
in this form in the partially-excluded areas of the province, see
the Orissa Laws Validating Regulation, 1942 (Or. Reg. I of 1943),
s. 2 and Second Schedule. |
| |
|
3. |
This clause is in force
in this form in the areas other than the partially-excluced areas
of the Province, see ibid.
The difference between the two clauses lies in the words printed in
italics.
|
| |
|
4. |
Substituted by the Orissa
Money-Lenders (Amendment) Act,1947 (Orissa Act XVlII of 1947),s.5
(ii)for"May".
|
| Decree may order payment
of amount due on mortagage by instalments. |
12. |
|
Notwithstanding anything to the
contrary contained in any other law or in anything having the force
of law or in any contract between the money-lender and the person
to whom the loan was advanced, the Court may at the time of passing
the decree in any suit relating to a mortgage by which any Joan is
secured, order that
payment of any amount decreed in such suit shall, subject to such
conditions as the Court may, impose be made by instalments:
Provided that before fixing the instalments the Court shall take into
consideration the repaying capacity of the judgment-debtor and shall
satisfy itself that the judgment- debtorn in a position to pay the
instalments on the due dates:
Provided further that simple interest at 6 per centum per annum may
be allowed on the decretal amount till the date of payment or sale.
|
| Power to direct payment
for amount decreed in respect of a loan or on mortgage by instalments. |
1[13]. |
(I) |
Notwithstanding anything to the
contrary contained in any other law or in anything having the force
of law or in any contract between the money-lender and the person
to whom the loan was advanced, the Court may [for reasons to be recorded
in writing]2 at any
time, on the application of a judgment-debtor, after notice to the
decree-holder, direct that the amont of any decree passed before or
after the commencement of this Act, in respect of a loan including
any decree in a suit relating
to a mortgage by which a loan is secured, shall be paid in such number
of instalments and subject to such conditions on the dates fixed by
it as having regard to the circumstances of the judgment-debtor and
the amount of the decree, it considers fit.
|
| |
|
3[(2) |
Any person aggrieved by an order
passed under sub-section (I) may appeal to the Court to which appeals
from the Court executing the decree ordinarily lie.] |
| |
|
1. |
Substituted by the Orissa
Money-Lenders (Amendment) Act,1947 (Or. Act X;VlII of 1947),s.5 (ii)for"May". |
| |
|
2. |
Inserted by ibid. |
| |
|
3. |
Inserted by ibid., s.
6 (2). |
| Court to estimate the
value of judgement debtors property. |
1[14]. |
(I) |
When an application is made for
the execution of a decree passed in respect of a loan or the interest
on a loan by the sale of the judgment-debtor's property, the Court
executing the decree shall notwithstanding anything to the contrary
contained in any other law or in anything having the force of law,
hear the parties to the decree and estimate as prescribed the value
of such property and of that portion of such property the proceeds
of the sale of which it considers will be sufficient to satisfy the
decree:
Provided that the Court may order the whole property of the judgment-debtor
to be sold if it is satisfied that by reason or the nature of such
property or any other special circumstances such property cannot reasonably
or conveniently be sold in part.
|
| |
|
2[(2) |
Any person aggrieved by an order
passed under sub-section (I) may appeal to the Court to which appeals
from the Court executing the decree ordinarily lie.] |
| |
|
1. |
Section 14 re-numbered
as sub-section (1) of the section by ibid., s. 7. |
| |
|
2. |
Inserted by ibid. |
| Only sufficient portion
of judgement debtor's property to be sold. |
1[15
] |
(1) |
Notwithstanding anything to the
contrary contained in any other law or in anything having the force
of law, the proclamation of the intended sale of property in execution
of a decree passed in respect of a loan or the interest on a loan
shall include only so much of the property of the judgment-debtor,
the proceeds of the sale of which the Court considers will be sufficient
to satisfy the decree, and such property shall not be sold at a price
lower than the price specified in the said proclamation:
Provided that if the property to be sold is immovable property and
the decree holder specifies which portion of such property should
be sold, the Court shall order that such portion or so much of such
portion as may seem necessary to satisfy the decree shall be sold:
Provided further that if the highest amount bid for the property included
in the sale proclamation is less than the price specified for such
property in the proclamation the Court may sell the property for such
highest amount, if the decree-holder consents in writing to forego
so much of the amount decreed as is equal to the difference between
the highest amount bid and the price specified for such property in
the sale proclamation.
|
| |
|
[(2) |
any person aggrieved by an order
passed under sub-section (1) may appeal to the Court to which appeals
from the Court executing the decree ordinarily lie]2 |
| |
|
1. |
Section 15 re-numbered
as sub-section (1) of the sectio:n by the Orissa Money-Lenders (Amendment
Act, 1947 (Or. Act XVIII of 1947), S. 8. |
| |
|
2. |
Inserted by the Orissa
Money-Lenders (Amendment) Act, 1947 ( Orissa Act XVIII or 1947), s.
8 |
| Sections 10 to 15 to
apply to certain pending suits ,appeals and execution proceedings. |
16. |
|
The provisions of
sections 10 to 15 shall [so far as may be]1apply- |
| |
|
(i) |
to suits [whether
brought by money-lenders or by any other persons]2
in respect of loans advanced before the commencement of this Act,
and pending on the date on which the said sections come into force;
and |
| |
|
(ii) |
to appeals and proceedings
in execution arising in respect of decrees passed un the 1st April
1936 or thereafter;: on the basis of loans whether such appeals of
proceedings in execution were pending on, or instituted after, the
date on which the said sections come into force. |
| |
|
1. |
Inserted
by ibid,s.9 (1) |
| |
|
2. |
Substituted
by ibid., S, 9 (2) for "brought by money-lenders" |
| Discharge of possessory
mortgage |
[17] |
(1) |
Notwithstanding
anything to the contrary contained in any law or anything having the
force of law or in any contract, any possessory mortgage which is
executed either before or after the commencement of this Act shall,
unless discharged previously. stand discharged after the expiration
of a period of seven years from the date of the mortgage |
| |
|
(2) |
On the discharge
of the mortgage as aforesaid, the mortgage shall deliver to the mortgagor
all documents in his possession or power relating to the mortgaged
property and shall retransfer the property to the mortgagor and put
him in possession thereof at his cost free from the mortgage and from
all encumbrances created by
him and those claiming under him within three months from the date
of expiry of the aforesaid period of seven years:
Provided that in cases where the said period of seven years has expired
prior to the 22nd day of September 1975 the delivery of documents
and the delivery of possession of the property as aforesaid shall
be effected within three menthes from the said date.
|
| |
|
(3) |
In case of, the
death of the mortgagor before the delivery of possession, the
mortgagee shall deliver possession of the said documents and the mortgaged
property to the successor-in-interest of the mortgagor.
|
| |
|
(4) |
Where the mortgagee
is unable to ascertain or is in doubt as to who is the successor-in-interest;
he shall make an application within the period allowed for delivery
of possession, to the Court which is competent to entertain a suit
in respect of the mortgaged property for taking over possession and
management of the property and custody of the documents where upon
the Court shall appoint a receiver and thereupon, the provisions contained
in Order XL of the Code of the Civil Procedure, 1908 shall, so far
as may be, apply. |
5 of 1908 |
| |
|
(5) |
Any person claiming
to be the successor-in-interest of the mortgagor may apply to the
Court within twelve years from the date of appointment of the receiver
for possession of the property where upon the Court shall determine
if the applicant or any other person is the successor in- interest
and for the said purpose the court shall, as far as may be, follow
the procedure provided in part X of the Indian Succession Act,1925.
|
39 of 1925 |
| |
|
(6) |
After such determination,
the Court shall deliver possession of the property along with the
documents and the amount, if any, which has accrued from the income
of the property to the person who is found by the Court to be the
successor-in-interest. |
| |
|
(7) |
If no application
is made under sub-section (5) within the period specified therein,
or if on such an application being made no person is found to be the
successor-in-interest and the said period has already elapsed, the
property along with the amount, if any which has accrued from its
income shall lapse to the State Government.
|
| Explanation: |
|
|
For the purpose of
this section any mortgage in pursuance of which the mortgagee is in
possession and enjoyment of the mortgage security in satisfaction
of the mortgage debt either in whole or in part shall be deemed to
be a possessory mortgage. ]1 |
| |
|
1. |
Substituted
by ibid., S, 9 (2) for "brought by money-lenders" |
CHAPTER
IV
PENALTIES AND PROCEDURE
|
| Power of Collector to
cancel Registration Certificate. |
18. |
(1) |
Where in any suit,
brought in respect of a loan by a registered money-lender,
or in respect of any security taken for a loan by a registered money-lender
the Court is of opinion that the registered money-lender has been
guilty of 'fraud, the Court shall make an order recording a finding
to that effect and fixing a period not exceeding three years as it
thinks fit during which the registration certificate granted to the
money-lender shall remain cancelled.
|
| |
|
(2) |
Where an order under sub-section
(1) is made by a Court exercising original jurisdiction an appeal
shall lie from it, within such period as may be prescribed, to the
Court to which appeals from the decrees passed by such Court ordinarily
lie, and the decision of the appellate Court shall be final; but no
appeal shall lie from an order made under sub-section (1) by an appellate
Court in an appeal from a decree of a Court exercising original jurisdiction.
|
| |
|
(3) |
A copy of every order made under
sub-section (1) or sub-section (2) shall be sent to the Collector
by the Court concerned and the Collector shall, after the order has
become final, cancel the registration certificate granted to the money-lender
for the period mentioned in the order. |
| |
|
(4) |
When the certificate of a registered
money-lender has been cancelled under sub-section (1) such money-lender
shall not be entitled to make any application under section 5 during
the period in which such order of cancellation remains in force, but
such cancellation shall not preclude the money-lender from instituting
suits in respect of loans advanced by him before the date of the order
of such cancellation. |
| Power of the Sub-divisional
Officer and the Tahasildar to cancel registration certificate. |
18-A |
(I) |
. If the Sub-divisional Officer
or the Tahasildar is satisfied that any registered money-lender carrying
on the business of money-lending within his jurisdiction has charged
interest at a rate higher than the rate specified in section 7-A,
he may pass an order for cancellation of the certificate of registration
granted to the money-lender and may disqualify him from being registered
as a money-lender for such period not exceeding three years, as may
be specified in the order:
Provided that no order canceling the certificate of registration shall
be passed without giving the money-lender a reasonable opportunity
of being heard.
|
| |
|
(2) |
An order passed under sub-section
(1) shall forthwith be communicated to the concerned money-lender
by the authority who has passed the order. |
| |
|
(3) |
Any person aggrieved by an order
canceling a certificate of registration may, within one month from
the date of communication of the order prefer an appeal |
| |
|
(a) |
if the order is passed by a Tahasildar,
before the Sub-divisional Officer; and |
| |
|
(b) |
if the order is passed by a Sub-divisional
Officer before the Collector. |
| |
|
(4) |
On receipt of an appeal under
sub-section (3), the appellate authority may stay
tbe operation of the order appealed against.
|
| |
|
(5) |
The Collector may transfer all
appeal preferred under sub-section (3) to any officer subordinate
to him who is above the rank of a Sub-divisional Officer, for hearing
and disposal. |
| |
|
(6) |
All orders passed under sub-section
(1), shall, subject to the order passed in
appeal, if any, be final and shall not be called in question in any
Court.
|
| |
|
(7) |
An order passed under sub-section
(1) shall, if it is not set-aside in appeal,
if any, be communicated by the authority passing the order. to the
Sub Registrar who, shall thereupon make necessary corrections in t
contl?ofe r money- lenders maintained by him. |
| |
|
(8) |
The cancellation of the certificate
of registration of a money-lender shall not affect his right to realise
the loans advanced by him in accordance with the provisions of this
Act prior to such cancellation, but he shall not be entitled to the
refund of any fee paid in respect of such certificate. |
| Power of the Government
to require money-lenders to produce records. |
18-B |
(I) |
The State Government may, from
time to time, by notification, require the money-lenders or money-lenders
belonging to any class or carrying on business in any local area,
to produce before such authority and by such date as may be specified
in the said notification, all records relating to their business including
documents evidencing advance of loans. |
| |
|
(2) |
The authority specified in the
notification referred to in sub-section (I) shall scrutinise the documents
with a view to determining if the transactions exceed the amount for
which the money-lender has obtained the registration certificate and
shall after giving the money-lender a reasonable opportunity of being
heard, pass an order declaring the particulars of transactions that
are within the amount specified in the said certificate. |
| |
|
(3) |
The order referred to in sub-section
(2) shall be published by affixture in the notice-board of the authority
passing the order and copies thereof shall also be sent to the Block
Development Officer and the Tahasildar within whose local limits of
jurisdiction the money-lender's principal place of business is situate
for publication by affixture in the notice-boards of their offices. |
| |
|
(4) |
If the authority referred to in
sub-section (2) is satisfied that a money-lender has transacted business
in excess of the amount specified in his registration certificate,
he may issue an order cancelling the said certificate and may also
disqualify him from being registered as a money-lender for such period
not exceeding three years as may be specified in the order. |
| |
|
(5) |
An order made under sub-section
(?) or sub-section (4) shall forthwith be communicated to the concerned
money-lender by the authority who has made the order. |
| |
|
(6) |
Any person aggrieved by an order
passed under sub-section (2) or sub-section (4) may, within one month
from the date of communication of the said order, prefer an appeal
before such authority as may be specified in the notification referred
to in sub-section (1). |
| |
|
(7) |
An order passed under sub-section
(2) or sub-section (4) shall, subject to the order passed in an appeal,
if any, be final and shall not be called in question in any Court. |
| |
|
(8) |
No Court shall entertain any claim
in respect of any loan advanced prior to the date of the order referred
to in sub-section (2) unless the particulars thereof are contained
in the said order and all suits in respect of such claims shall stand
abated. |
| |
|
(9) |
An order passed under sub-section
(4) shall, if it is not set aside in appeal, if any, be communicated
by the authority passing the order to the concerned Sub- Registrar
who shall thereupon make necessary corrections in the register of
money-lenders maintained by him. |
| |
|
(10) |
Subject to the provisions of
sub-section (8), the cancellation of the certificate of registration
of a money-lender shall not affect his right to realise the loans
advanced by him in accordance with the provisions of' this Act prior
to such cancellation, but he shall not be entitled to the refund of
any fee paid in respect of such certificate. ]1 |
| |
|
1. |
Inserted by the Orissa
Money-lenders (Amendment) Act, 1975 (Orissa Act 54 of 1975), s. 9. |
| Voluntary cancellation
of registration. |
[18-C. |
|
Where any money-lender registered
under this Act desires not to carryon the business of money-lending,
he may make an application to the authority who granted him the certificate
of registration for the cancellation of such registration, and the
authority may, after making such enquiry as it deems fit, cancel the
registration of the applicant.]1 |
| |
|
1. |
Inserted by the Orissa
Money-Lending Laws (Amendment) Act, 1977 (Orissa Act 7 of 1977), s.
2 (a). |
| Penalties. |
[19. |
(1) |
Any money-lender who |
| |
|
(a) |
carries on business as such without
being registered as a money-lender; or |
| |
|
(b) |
receives interest at a rate higher
than the rate specified in section 7-A; or |
| |
|
(c) |
actually advances an amount less
than the amount shown in his accounts,
register, pawn-tickets or other documents relating to the loan,
shall, on conviction, be punishable with imprisonment for a term which
may extend to one year or with fine which may extend to one thousand
rupees or with both. ] 1
|
| |
|
[(2) |
Any money-lender who, without
sufficient cause,-
(a) fails to put the mortgagor or his successor-in-interest, as the
case may be in possession of the property as required by sub-section
(2) or sub-section (3) of section 17; or]2
|
| |
|
[(aa) |
in the case of a possessory mortgage
within the meaning of section 17 which is discharged prior to the
completion of a period of seven years from the date of the mortgage,
fails to put the mortgagor or his successor-in--interest, as the case
may be, in possession of the mortgaged property within three months
from the date of such discharge; or]3 |
| |
|
{(b) |
fails to make an application
to the Court as required by sub-section (4) of that section,
shall, on conviction, be punishable with imprisonment for a term which
may extend to one year or with fine which may extend to one thousand
rupees or with both]4
|
| |
|
[(3) |
Any money- lender or his agent
who contravenes any provision of this, Act shall, on conviction, if
such contravention is not punishable under sub-section (1) or sub-section
(2), be punishable with fine which may extend to one thousand rupees.]
5 |
| |
|
1. |
Substituted by the Orissa
Money-Lenders (Amendment) Act, 1975 (Orissa Act 54 of 1975), .s. 10. |
| |
|
2. |
Substituted by the Orissa
Money-Lenders (Amendment) Act, 1976 (Orissa Act 32 of 1976),s. 5. |
| |
|
3. |
Inserted by the Orissa
Money-Lending Laws (Amendment) Act, 1977 (Orissa Act 7 of 1977),s.2. |
| |
|
4. |
Substituted by the Orissa
Money-Lenders (Amendment) Act, 1976 (Orissa Act 32 of 1976),s. 5. |
| |
|
5. |
Substituted by the Orissa
Money-Lenders (Amendment) Act, 1975 (Orissa Act 54 of 1975). s. 10. |
| Penalty for taking premium. |
20. |
|
If after the commencement of
this Act, any money-lender or his agent takes from a debtor at the
time of advancing a loan or deducts out of the principal of such loan
any premium or other exactions of a similar nature by whatever name
called or known, such money-lender or his agent, as the case may be
shall be punishable with fine, not exceeding twice the amount of such
premium or exaction. |
| Abatement to be an offence. |
["20-A. |
|
Whoever abets any offence punishable
under this Act shall, whether or not the offence abetted is committed,
be punishable with the same punishment as is provided for the offence
which has been abetted. |
45 of 1860 |
| Explanation: |
|
|
For the purposes of this Act,
"abetment' has the meaning assigned to it in the Indian Penal
Code. |
| Offences to be tried
by an Executive Magistrates summarily. |
20-B |
(1) |
The State Government may confer,
on an Executive Magistrate, the powers of a Judicial Magistrate of
the first class or of the second class for the trial of the offences
under this Act, and on such conferment of powers, the Executive Magistrate,
on whom the powers are so conferred, shall be deemed, for the purposes
of the Code of Criminal Procedure, 1973, to be a Judicial Magistrate
of the first class or of the second class, as the case may be. |
2 of 1974 |
| |
|
(2) |
An offence under this Act may
be tried summarily by a Magistrate. |
| Cognizance of offences. |
20-C |
|
Every offence under this Act shall
be cognizable and bailable.]1 |
| |
|
1. |
Inserted by the Orissa Money-Len:ers
(Amendment) Act, 1976 (Orissa Act 32 of 1976),s. 6. |
| CHAPTER
V
MISCELLANEOUS |
| Powers of Court under
the usurious Loans Act,1941 not affected by this Act. |
21. |
|
Save as otherwise
provided in section II nothing in this Act shall effect the powers
of a Court under the Usurious Loans Act, 1918. |
X of1918 |
Contract for payment
outside the State void. |
22. |
|
Notwithstanding
anything to the contrary contained in any other law or in anything
having the force of law, any contract entered into between a money-lender
and his debtor in respect of a loan advanced after the commencement
of the Act providing for the payment of the amount due on such loan
at any place outside the State of Orissa shall to that extent, be
void, but this section shall not apply to contracts in respect of
goods supplied on khata or on credit. |
| Power to deposit in Court
money due on loan. |
23. |
(1) |
When a debtor tenders
to a money-lender or his agent money on account of any interest due
on a loan or on account of a principal of a loan and the money-lender
or his agent refuses to receive the amount tendered or refuses to
grant a receipt for the same, the debtor may deposit, if any Court
in which the money-lender might have instituted suit for the recovery
or such interest or such loan, to the account of the money-lender
the amount tendered as aforesaid. |
| |
|
(2) |
The Court shall thereupon
forthwith grant a receipt for the deposit under the seal of the Court
and cause a written notice of the deposit to be served upon the money-lender. |
| |
|
(3) |
The money-lender may at any time
within three years after the date of the service upon him of the notice
mentioned in sub-section (2) make an application: to the Court praying
for the amount deposited as aforesaid to be paid to him. |
| |
|
(4) |
If no application
is made under sub-section (3) within the period mentioned in the said
sub-section, the amount deposited shall be disposed of in the prescribed
manner. |
| |
|
(5) |
Upon receipt of an
application under sub-section (3) the Court may order such amount
to be paid to the applicant upon such terms and subject to such conditions
as may be specified in the order. |
| Court's receipt to operate
as acquittance. |
24. |
|
A receipt given
by the Court under sub-section (2) of section 23 shall operate as
an acquittance for the amount deposited as aforesaid in the same manner
and to the same extent as if that amount had been received by the
money-lender to whose credit the deposit was made, on the date of
such deposit. |
| Restriction on re-payment
void. |
25. |
|
A debtor may repay
the whole or any part of the principal or interest due under a loan
to the money-lender at any time and in any manner and any agreement
between a money -lender and a debtor to the contrary imposing restrictions
on the freedom of repayment shall be illegal and void. |
| Explanation: |
|
|
An agreement entered
into by a debtor prohibiting either absolutely or conditionally, repayment
of the principal or interest due under a loan until after the expiry
of a certain period of time shall be void. |
| Power to make rules. |
26. |
(1) |
The State Government
may make rules1 for
the purpose of carrying out all
or any of the purposes of this Act.
|
| |
|
(2) |
In particular and
without prejudice to the generality of the foregoing provisions, the
State Government may make rules- |
| |
|
(a) |
prescribing the
form of the register mentioned in sub-section (1) of [section 4-A}2
and the particulars to be contained in such a register; |
| |
|
(b) |
prescribing the
form of the registration certificate mentioned in sub-section
(4) of section 5;
|
| |
|
(c) |
prescribing the particulars to
be contained in an application made under sub-section (1) of section
5 ; |
| |
|
(d) |
prescribing the registration
fee to be paid on the applications made under sub-section (1) of section
5 ; |
| |
|
(e) |
providing for and regulating
the supply of copies of the account mentioned in clause (a) of section
7; |
| |
|
(f) |
providing for and regulating the
grant of periodical statements of account to a debtor signed by the
money lender or his agent showing the balance or amount that might
be outstanding against such debtor on account of the principal and
interest at the time of furnishing the said statement and the amount
of every payment received by the money-lender in respect of the loan
and the date of such payment during the period to which the statement
relates; |
| |
|
(g) |
prescribing the particulars
to be contained in a plaint in a suit by a money-lender as defined
in sub-clause (l) or sub-clause (2) of clause (j)
of section 2; |
| |
|
(h) |
for estimating the value of the
property under section 14; |
| |
|
(i) |
prescribing the period for appeal
under sub-section (2) of section 181 and |
| |
|
(j) |
prescribing the manner in which
deposits made under sub-section (4) of section 23 shall be disposed
of. |
| |
|
(3) |
A draft of the rules proposed
to be made under this section shall be laid on the table of the Orissa
Legislative Assembly and the rules shall not be made unless the Assembly
by resolution, approves the draft either without modifications or
additions, or with modification or additions but, upon such approval
being given, the rules may be made in the form in which they have
been approved and such rules shall have force and effect after previous
publication in the official gazette. |
| |
|
1. |
For rules see Notification
No. 4322-D., dated the 11th December, 1939. |
| |
|
2. |
Substituted by the Orissa
Money-Lenders (Amendment) Act. 1975 (Orissa Act 54 of 1975). s. 11. |
| Repeal of enactments. |
27. |
|
The Madras Debtor's Protection
Act, 1934, Usurious Loans (Central Provinces Amendment) Act, 1934,
and the Central Provinces Money-lenders Act, 1934, and section 3 of
the Agency Tract Interest and Land Transfer Act, 1917 in their application
to the State of Orissa, are hereby repealed. |
Madras Act VII of 1935.C.P Act XIII
of 1934, Madras Act I of 1917. |
TRANSITORY
PROVISION UNDER SECTION 12 OF THE ORISSA MONEY-LENDERS (AMENDMENT)
ACT, 1975 (ORISSA ACT 54 OF 1975) *
AS AMENDED BY ORISSA MONEY-LENDERS (AMENDMBNT) AMENDMENT ACT, 1979
(ORISSA ACT17 OF 1979.) |
| |
12. |
|
All proceedings in the execution
of a decree obtained by a money-lender in respect of a loan advanced
by him to an indigent debtor pending in a court of law on the date
of coming into force of this Act shall remain in abeyance for a period
of [five years]1 from
the said date and all applications for execution of any such decree
filed after the said date but before the expiration of the said period
of [five years]1 shall
remain in abeyance for the remainder of that period. |
| Explanation: |
|
|
For the purposes of this section- |
| |
|
(a) |
"money-lender" shall
mean a money-lender as defined in the Orissa Money-Lenders Act, 1939;
and |
Orissa Act 3 of 1939 |
| |
|
(b) |
"indigent debtor" shall
mean a debtor who- . |
| |
|
(i) |
owns land not exceeding two and
a half acres and whose principal source of income is agriculture and
allied occupations; or |
| |
|
(ii) |
is an agricultural labourer owning
no land or landless than the extent referred to in sub-clause (i). |
| |
|
* |
It came into force |