JUDGMENT

PRADIP MOHANTY, J. — The defendant is in appeal which is di¬rected against the judgment dated 25.1.1986 of the Additional District Judge, Berhampur, in T. A. No. 21 of 1985 (18/1985 GDC) who by reversing the decision of the Sub-ordinate Judge Aska, has decreed the suit.

2. At the time of admitting the appeal, the following substantial questions of law were framed :

“(i) Whether in view of the amendment to the Orissa Money Lend¬ers’ Act in the year 1975 by Act 54 of 1975 and the transactions held, it can be said that the plaintiff is a money lender for the suit not being maintainable under the Orissa Money Lenders’ Act ?

(ii) Whether the question of limitation can be gone into when no issue to that effect has been raised that there is an assertion in the written statement."

3. Plaintiff’s case briefly stated is that she is not a regular money-lender. The defendant took loan of Rs. 3000/- from her by executing a simple mortgage Bond on 12.5.1973. The plain¬tiff also agreed to pay a sum of Rs. 2800/- to the Land Develop¬ment Bank, Aska but could not pay the same. The defendant agreed to pay the principal and interest within three years. It was also stipulated that if the security property would be insufficient to discharge the principal and interest, then the plaintiff can recover the loan from other properties. The defendant,however, did not discharge the suit loan and maliciously reported to Patapur Police Station that she (plaintiff) is a money-lender with a view to avoid payment. Finding no other alternative, the plaintiff filed the suit for recovery of Rs. 4800/-. The claim is as follows :

(i) Principal amount due under the

mortgage bond dated 12.5.1974 ... Rs. 3,000/-

(ii) Interest due from 12.5.1973

till 12.4.1980 at the rate of 9

per cent per annum ... Rs. 1,800/- (Rounded)

Total ... Rs. 4,800.00

4. The defendant in her written statement admitted to have received the loan amount of Rs. 3,000/-. According to her, the plaintiff is a regular money-lender without having any licence and thus the suit is hit by Section 8 of the Orissa Money-Lenders’ Act, 1939 (for short, ‘the Act’). Her further case is that the charge of interest made by the plaintiff at the rate of 12 per cent per annum is not permissible. She also stated that the mortgage deed is not enforceable as the plaintiff had not paid the loan to the Land Development Bank. She also pleaded that her husband had taken loan from the plaintiff for which another suit, namely, T.M.S. No. 53/1980 has been filed by the plaintiff.

5. On the basis of evidence,the trial Court found that the defendant and her husband took loan separately from the plaintiff and the husband was acting on behalf of the defendant. As such both the transactions are in regular course of business. Because the plaintiff had no licence, the suit is hit by Section 8 of the Act.

In appeal preferred by the plaintiff, the lower appellate Court held that the plaintiff is not a regular money-lender but she was casually lending money and the suit is, therefore, not hit by Section 8.

6. In order to decide the question of law formulated above, it is necessary to refer to certain provisions of the Act. Section 2 (i) of the Act defines ‘loan’ as follows :

“loan” means an advance whether of money or in kind or 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 authorised by the State Government or by a Co-operative Society;

(2) a deposit of money in a Post Office Savings Bank or a depos¬it 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 subj