The main legal point established is the criteria for determining regular course of money-lending business and the limitations of power of attorney holders in deposing for the principal.

JUDGMENT :

A.K. RATH, J.

1. Defendant is the appellant against a reversing judgment.

2. Plaintiff-respondent instituted the suit for realization of Rs. 3200/- with pendente lite and future interest. The case of the plaintiff is that the defendant took a loan of Rs. 2000/- from her to meet his household expenses. He executed the simple mortgage deed on 12.5.1973 to pay principal with interest within three years, failing which the same shall be realized from the secured property. She is not a regular money lender. Since the defendant failed to pay the loan amount, she instituted the suit seeking the reliefs mentioned supra.

3. The defendant entered contest and filed written statement admitting that he had received the amount. The specific case of the defendant was that the plaintiff was a regular money lender. The transaction was hit under Sec. 8 of the Orissa Money Lenders Act. The plaintiff had given loan to his wife. He instituted T.M.S. No. 52 of 1980 for realization of amount.

4. On the interse pleadings of the parties, learned trial court struck four issues. Parties led evidence, oral and documentary to substantiate their cases. Learned trial court came to hold that plaintiff is a regular money lender. The alleged transaction was hit under Sec. 8 of the Orissa Money Lenders Act. Held so, it dismissed the suit. Felt aggrieved, the plaintiff filed T.A. No. 31 of 1985 before the learned 2nd Additional District Judge, Berhampur. Learned lower appellate court hold that the plaintiff was not a regular money lender and allowed the appeal.

5. The second appeal was admitted on the following substantial question of law.

“Whether the plaintiff is a money lender in view of the amendment of the Orissa Money Lenders Act under Orissa Act 54 of 1975 and in view of the decisions reported in Jambeswar Behera vs. Kasi Naik, (1959) 25 CLT 215 and Bakula Khan and Another vs. Indramani Prusty, (1968) 34 CLT 509.”

6. Mr. Baibaswata Panigrahi, learned Advocate on behalf of Mr. S.K. Padhi, learned Senior Advocate for the appellant submits that the plaintiff was a regular money lender. The alleged transaction was hit under Sec. 8 of the Orissa Money Lenders Act. PW-1 in his evidence had admitted that the plaintiff was a money lender. In view of the same, learned lower appellate court is wholly unjustified in reversing the finding of the learned trial court.

7. Per contra, Mr. Sidhartha Mishra, learned Advocate on behalf of Mr. B.B. Ratha, learned Senior Advocate for the respondent submits that on a threadbare analysis of the evidence on record, learned lower appellate court came to hold that plaintiff was not a regular money lender. The alleged transaction was prior to amendment of Orissa Act 54 of 1975. Learned trial court misread the evidence of PW-1. PW-1 in his evidence stated that he was not a regular money lender.

8. Before adverting to the contentions raised by the learned Advocates 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 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 Cooperative 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 a