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Judgment
K.K. Desai, J.—[His Lordship after holding that the loan was made to traders, proceeded]. Now, in connection with loan to traders, the relevant provisions are in section 2 (9) of the Act and read as follows :
(9) ''loan'' means an advance at interest whether till money or in kind, but does not include-
(a)...
(b)...
(c)...
(d)....
(e)...
(f)...
(g) except for the purposes of sections 23 and 25,-
(i) a loan to a trader;,..
On a reading of the above definition of loan in section 2 (9), it is clear that the provisions of the Act, including those in sections 18 and 19, are not applicable to loans advanced to traders. To loans advanced to traders, sections 23 and 25 only apply. The learned appellate Judge below was not justified in his view that if loan was not shown to have been advanced to a trader for purposes of his trade, the same is not excluded from being loan u/s 2 (9). The learned Judge failed to appreciate that the provisions in clause (g) of section 2 (9) have not the effect of providing that loans which were not advanced to traders for their trade purposes would be loans within the meaning of the Act. On the contrary, the clear and unambiguous language in the above clause (g) has the effect of providing that whenever loan was advanced to a trader, except for the purposes of sections 23 and 25, it could not be loan within the meaning of the Act, i. e. the defining section 2 (9). The learned Judge should have, having regard to the clear evidence of the plaintiff on record, held in the plaintiff''s favour that, since the above mortgage loan had been advanced to a joint family which was carrying on business in saris, it was covered by the provisions in the above clause (g) and was loan to traders. Merely for the reason that it was not stated in the evidence that the loan was advanced for purposes of the trade of the joint family, the learned Judge was not justified in holding that the loan was not made to traders. That two of the sons of Sidram were minors at the date of the mortgage and that his wife had joined in the mortgage was, in that connection, not sufficient to make a finding that the loan was not advanced to a trader. It is quite clear that the loan was advanced to the trading family and must be held to have been made to traders.
The power to refuse interest to a moneylender on breach of the provisions in sections 18 and 19 of the Act is contained in section 21 of the Act. Section 21 was not applicable to the facts of the suit mortgage having regard to the above provisions contained in clause (g) of section 2 (9). The two Courts below were, therefore, not justified in depriving the plaintiff of the interest that had accrued due on the mortgage till the date of the institution of the suit.
The appeal is accordingly allowed and the decree passed by the trial Court and confirmed by the lower appellate Court is modified to include the interest due till the date of the institution of the suit, viz. Rs. 2,915. The preliminary decree will be drawn accordingly.
No order as to costs of this appeal.