JUDGMENT :

Dr. A.K.RATH, J.

1. The defendant is in appeal against the affirming decision of the learned Subordinate Judge, Chatrapur.

2. The plaintiff-respondent instituted the suit for recovery of Rs.3800/- with pendente lite and future interest @9% per annum from the defendant. The case of the plaintiff is that on 9.4.1973 the defendant had executed a registered simple mortgage deed in his favour for a loan of Rs.3000/-. The defendant agreed to pay the interest @Rs.2/- percent per month. He further agreed to pay the interest at the end of every year and pay the entire amount within three years. It was stipulated that in the event the amount is not paid within the time stipulated, the plaintiff shall be at liberty to realize the same. While the matter stood thus, the defendant paid an amount of Rs.500/- on 7.3.1976, which was endorsed on the back side of the mortgage deed. All the persuasions made by the plaintiff to pay the rest amount ended in a fiasco. With this factual scenario, he instituted the suit.

3. The defendant filed a written statement denying the assertions made in the plaint. The specific case of the defendant is that the plaintiff was a regular money lender. He had no licence to carry on money lending business. It was further pleaded that the suit land belongs to his wife. He was not pulling on well with her. She intended to sell the property to the outsiders. At this juncture, the plaintiff persuaded him to execute a mortgage deed. He executed the deed in good faith. He had not received any money.

4. Stemming on the pleadings of the parties, the learned trial court struck four issues. Both parties led evidence. The learned trial court held that the plaintiff was not having a regular business in money lending. The mortgage deed dated 9.4.1973, Ext.1 is real one. The defendant had received the amount. He had paid Rs.500/-. Held so, it decreed the suit. The unsuccessful defendant filed Title Appeal No.18 of 1985 before the learned Subordinate Judge, Chatrapur, which was eventually dismissed.

5. The appeal was admitted on 19.3.1991 on the following substantial questions of law. The same are :

“(1) Whether the suit is hit by the provisions of Sections 8 and 18 of the Orissa Money Lenders Act ?

(2) Whether the courts below are correct in ignoring Exts.A and B though the originals have been called for in this case ?”

6. Mr. Sidhartha Mishra, learned Advocate on behalf of Mr.B.B.Ratho, learned Senior Advocate for the appellant submitted that the plaintiff was a regular money lender. He had no money lending licence. The alleged transaction is hit by Sec. 8 of the Orissa Money Lenders Act.

7. Per contra, Mr. Byomakesh Sahoo on behalf of Mr.A.K.Dalai, learned Advocate for the respondent contended that both the courts below concurrently held that the plaintiff was not a regular money lender. The mortgage deed was executed by the defendant in favour of the plaintiff. The plaintiff had received an amount of Rs.3000/-. He paid an amount of Rs.500/-. Since the rest amount was not paid, the plaintiff instituted a suit. The defendant is liable to pay the balance amount with interest.

8. Before adverting to the contentions raised by the learned Advocate for both the parties, it will necessary to set out some of the provisions of Money Lenders 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 moneylender 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 Cooperative 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 purcha