T.V.R. Fund vs Inspecting Assistant Commissioner and Another

K. Narayana Kurup, J.—The challenge in this Original Petition is mainly directed against the constitutional validity of Section 18-D of the Kerala Money Lenders Act (for short ''the Act''). According to the Petitioner, the said section is ultravires and unconstitutional being violative of Articles 14 and 19(1)(g) of the Constitution of India. This question is no longer resintegra as it has been held as against the Petitioner upholding the validity of the Act itself in the decision reported in Monarch Investments v. State of Kerala 1989 (1) KLT 51 as affirmed by the decision of the Apex Court in State of Kerala v. Monarch Investments 1992 (1) KLT 583. Therefore, the challenge against Section 18-D of the Act fails and the Original Petition stands dismissed in that regard.

But then, the Petitioner has a grievance that Exhibit P-11. order imposing a penalty of a sum of Rs. 1,27,24,033.00 for violation of Section 7 of the Act cannot be justified. Having considered the various aspects of the case, I am satisfied that the grievance of the Petitioner cannot be said to be without substance. On a perusal of Exhibit P-11 it is seen that Exhibit P-11 was passed without affording an opportunity of being heard to the Petitioner. In a matter involving high stakes and grave civil consequences, it is only just and fair on the part of the authority concerned to pass orders after affording a fair hearing to the affected party. Admittedly, no opportunity of hearing has been afforded to the Petitioner. That apart, the penalty imposed is 2 1/2 times of the excess interest collected, namely, Rs. 50,89,613.00 which amounts to the near maximum of 3 times provided under the statute. The statutory authority has thus imposed almost the near maximum of the penalty. Though the authority has jurisdiction to impose the penalty, mechanical imposition of the maximum or the near maximum penalty without hearing the affected party and without considering the various parameters warranting imposition of such penalty is bad in law. The statutory authority is not obliged to impose the maximum penalty or the near maximum penalty merely because the statute confers jurisdiction on it to do so. The penalty though intended to operate as a deterrent against levy of unconscionable interest by unethical money lenders shall not however, have the effect of financially ruining them. The discretion has to be exercised in a just fair and reasonable manner. In the above view Exhibit P-11 cannot be legally sustained. I, therefore, quash Exhibit P-11 however with liberty to the first Respondent to pass fresh orders in the light of the observations contained in this judgment after affording an opportunity of being heard to the Petitioner either in person or through counsel within six weeks from today.

Original Petition is disposed of as above.