JUDGMENT : Rao, J. - Plaintiff files this appeal against the reversing judgment of the learned Subordinate Judge of Balangir dismissing the Plaintiff's suit. 2. The Plaintiff. filed the suit to recover a sum of Rs. 2000/- paid by him to the Defendant. According to the plaint allegations the Plaintiff paid this amount on 21-4-1952 on the Defendant agreeing to mortgage his building at Titlagarh. The terms of the mortgage deed (Ext. 1) are that it was agreed between the parties that the Defendant should repay the sum of Rs. 2000/- In quarterly instalments of Rs. 800/- each and in default of payment of anyone instalment the entire money shall become due and the Plaintiff will be entitled to sue for recovery of the same; and that the Defendant should continue to be in possession of the house mortgaged agreeing to pay a rent of Rs. 20/- per month. The Defendant never paid any amount towards rent also. The Plaintiff's case is that the Defendant having failed to pay anything, the suit Is filed to recover the sum of Rs. 2000/-. 3. The Defendant, though he admitted the signature on Ext. 1, denied execution and receipt of consideration. He also contended that the Plaintiff being a money-lender was not entitled to sue u/s 8 of the Orissa Money Lenders Act as he did not register himself. 4. The learned Munsif, after a careful consideration of the points raised by the Defendant, came to the conclusion that the document was executed by Defendant and that Rs. 2000/- were actually received by him from the Plaintiff. He held that the Plaintiff was a money-lender in the usual course of business, but as the suit transaction was not a loan, the Plaintiff was entitled to recover. 5. The appellate Court came to different conclusion as far as the bar of suit Is concerned. The appellate Court agreed with the learned Munsif that the document was executed by the Defendant and that the Defendant received Rs. 2000/-. But the learned Subordinate Judge also held that there was no personal liability and consequently on that ground also the Plaintiff was not entitled to sue for recovery of his Rs. 2000/-. 6. Mr. The appellate Court agreed with the learned Munsif that the document was executed by the Defendant and that the Defendant received Rs. 2000/-. But the learned Subordinate Judge also held that there was no personal liability and consequently on that ground also the Plaintiff was not entitled to sue for recovery of his Rs. 2000/-. 6. Mr. B.M. Patnaik, learned Counsel appearing for the Plaintiff Appellant contends that the learned Subordinate Judge is wrong in coming to the conclusion that the Plaintiff is not entitled to sue to recover this amount. He contends that there is in the document an express condition inasmuch as the terms clearly show that in default of any instalment the entire money becomes payable. In my view, the learned Subordinate Judge committed an error in deciding this question on the footing that it was a mortgage and that there was a valid mortgage in existence. He failed to note in discussing this aspect of the matter that the document Ext. 1 is not a registered document and as such there is no question of there being a registered usufructuary mortgage bond under which the only relief open to the Plaintiff was a suit for foreclosure. In substance, the Plaintiff's case appears to me to be one for recovery of Rs. 2000/- paid by him to the Defendant as the document was not registered and as the Defendant failed to pay the instalments as agreed to be paid under the document. I am therefore of opinion that the Plaintiff is entitled to sue for the recovery of the amount of Rs. 2000/- from the Defendant. 7. The next question contended for by Mr. Patnaik is that the transaction evidenced by the suit document is not a loan and therefore there is no bar u/s 8 of the Money Lenders Act. He contends that there was no stipulation for interest on this amount of Rs. 2000/-. He did not sue for any interest and there is no evidence that any amount was paid to the Plaintiff by the Defendant since the execution of the document. The trial Court came to a definite conclusion that the mortgagor never acted upon the mortgage bond and the mortgage bond was never registered. On these facts as found, the question to be considered is-can this amount of Rs. 2000/- be regarded as a loan? The trial Court came to a definite conclusion that the mortgagor never acted upon the mortgage bond and the mortgage bond was never registered. On these facts as found, the question to be considered is-can this amount of Rs. 2000/- be regarded as a loan? Section 2(i) of the Orissa Money Lenders Act says, Loan means an advance whether of money or in kind on interest made by a money-lender and shall include a transaction on a document bearing interest executed in respect of past liability and any transaction which, in substance, is a loan, bot shall not include Now it is clear that the suit transaction cannot come under Clauses (1) and (2). The learned Counsel for the Respondent, Mr. G.G. Das contends that this transaction amounts, in substance, a loan. He contends that there was an .advance of Rs. 2000/- and that the agreement to pay Rs. 20/- towards the rent to the Plaintiff Is practically by way of interest for the amount of Rs. 2000/- and therefore the suit transaction, in substance, is a loan. There seems to be some force in this contention. But Inasmuch as the mortgage bond is not registered, it is not a valid usufructuary mortgage bond. Unless it is a valid usufructuary mortgage bond, the Plaintiff can have no title to sue for rent as the house admittedly belongs to the Defendant and therefore though in his plaint the Plaintiff stated that he reserved his right to recover rent by a separate suit, yet he cannot file a suit to realise rent as there was no subsisting valid usufructuary mortgage bond. In that view of the matter, I am of opinion that this cannot be, in substance a loan. 8. Mr. Patnaik further submits that the suit can be viewed as a suit for recovering back the money under the contract as the mortgage bond was not acted upon and was not registered. Such a suit to recover back the amount of Rs. 2000/. is a suit by way of damages for breach of contract and cannot be a suit on a loan. In my opinion, the contention Is correct. In support of this contention, he relied upon a recent decision of the Supreme-Court in the case of Radha Kissen Chamria and Others Vs. Keshardeo Chamria and Another. 2000/. is a suit by way of damages for breach of contract and cannot be a suit on a loan. In my opinion, the contention Is correct. In support of this contention, he relied upon a recent decision of the Supreme-Court in the case of Radha Kissen Chamria and Others Vs. Keshardeo Chamria and Another. In that case, purchase a per an agreement for sale not having been completed by the purchasers with sufficient despatch, the vendor instituted a suit against the purchasers for specific performance of the agreement. The suit was compromised and a decree was passed in terms of the agreement arrived at between the parties. Under the agreement the vendor was to accept payment of a portion of the moneys payable under the agreement for sale Immediately and the balance in certain instalments and he was to be paid interest on the purchase money at the same rate which was provided in the agreement for sale. The compromise decree vested the property agreed to be sold in one of the purchasers and created a charge on it for the purchase money unpaid for the time being. The Supreme Court held on those facts that the purchasers could not claim any benefit u/s 30 of the Bengal Money Lenders Act inasmuch as they were neither borrowers' nor were they being made to pay in respect of a 'loan' as those terms were defined in the Act; and that the fact that under the compromise decree the moneys were payable in a number of instalments instead of at once could not show that the price had become a loan, nor was here anything to show that the parties had treated the purchase money as paid off in its entirety and the amount equivalent to the purchase money as being due by the purchasers to the vendor by way of a loan on which basis the transaction might in substance be a loan. In my opinion, this decision supports Mr. Patnaik's contention. In the case before the Supreme Court it was 'purchase money' that was sought to be recovered. In this case, it is the mortgage money that is sought to be recovered as the mortgage did not effectuate. 9. Mr. G.G. Das, learned Counsel for the Respondent contends on the strength of a decision of the Patna High Court in the case of Ramnarain Pasi Vs. In this case, it is the mortgage money that is sought to be recovered as the mortgage did not effectuate. 9. Mr. G.G. Das, learned Counsel for the Respondent contends on the strength of a decision of the Patna High Court in the case of Ramnarain Pasi Vs. Sukhi Tiwary that because there is a stipulation for payment of rent of the house, the transaction is, in substance, a loan. In the Patna case it was held, Where usufructuary mortgages has leased the mortgaged property back to the mortgagor, failure on the part of the mortgagor to fulfil the conditions of the lease would always amount to failure on the part of the mortgage of the statutory obligation of maintaining the mortgages in undisturbed possession of the property mortgaged. Such failure will give rise to such statutory remedies as are available to the mortgagee as such. Hence so long as the ijara is in force the remedy of the mortgage for arrears of rent according to the terms of the keryanama is not confined only to his remedy u/s 68, T.P. Act but he is also entitled to sue for his arrears of rent. This decision, in my opinion, does not apply to the facts of the present case before me. There it was the case of a valid usufructuary mortgage bond under which the mortgagor took possession of the house as lessee of the mortgagee and agreed to pay rent. The terms of the mortgage bond there are clear that this rent represented the interest for the money advanced on the usufructuary mortgage. 10. In conclusion, I am of opinion that the learned Munsif is right in decreeing the Plaintiff's suit. The judgment and decree of the learned Subordinate Judge are set aside, the appeal is allowed and the suit is dismissed with costs throughout. Leave to appeal is asked for and is granted. Appeal allowed. Final Result : Allowed