UNION BANK OF INDIA Vs. LOGIC SYSTEMS PVT

JUDGEMENT

(1.) This is an application by the plaintiff under O. 2, R. 2 of the Code of Civil Procedure (for short 'Civil Procedure Code'), seeking leave to omit the relief for enforcement of its mortgage rights in respect of Flat No. 3, Datta Apart- ments Khar, Bombay (for short the mort- gaged property) from the instant suit and to institute appropriate proceedings in the Court of competent jurisdiction to enforce its said rights in respect of the said property. It has also been prayed in this application that necessary leave be granted to the plaintiff to omit including in this suit, the claim of the plaintiff under the various bank guarantees issued by the plaintiff for and on behalf of defendant No. 1 in favour of various parties, and to institute a suit for recovery of its dues if and when necessary, in the event of the bank guarantees being invoked and the payment of amount claimed therein.

(2.) It is stated in this application that defendant No. 1 had equitably mortgaged the said property with intent to create security for the dues of defendant No. 1 and that this charge was got registered in the office of the Registrar of Companies of Delhi and Har- yana. New Delhi. It is alleged that since the mortgaged property is situated in Bombay, therefore, the plaintiff cannot claim the relief under the mortgage against the said defend- ant in the suit in this Court as this Court does not have the jurisdiction to grant such a relief. It is also alleged that, that can only be done by filing appropriate proceedings in the Court of competent jurisdiction in Bombay where the said mortgaged property is situated and that the plaintiff intended to do so.

(3.) In the application it is also stated that the plaintiff had issued various bank guaran- tees for and on behalf of defendant No. 1 in favour of various parties; some of which are still alive; and the plaintiff bank has not received any demand till date invoking them. In the event of such guarantees being invoked, the plaintiff would have to make payment under the same. Consequently, the plaintiff bank will also become entitled to recover those amounts from the defendants. It is, however, pointed out that the cause of action in respect of the bank guarantees had not accrued till the filing of the application and, therefore, no claim in respect thereof was includible in this Suit.