GOPALAKRISHNAN Vs. STATE BANK OF TRAVANCORE

JUDGEMENT

(1.) AS 674/97 is an appeal preferred by the plaintiff, Bank against the judgment and decree passed by the Sub Judge, Nedumangad in OS 123/96 and the other appeal is filed by the defendants against the very same judgment. The suit is one for realisation of the amount advanced to the first defendant along with the 2nd defendant as guarantor and on non - payment the suit was instituted. The court below found that as far as the first defendant is concerned the suit is barred by limitation and held that there can be a decree against the 2nd defendant by sale of the property equitably mortgaged to the Bank. The plaintiff has come up in appeal regarding the disallowance of a decree against D1 and personal decree against D2 whereas the defendants have come up in appeal contending that when the principal debtor's liability stands discharged no action can be taken against the guarantor or surety and further there is absolute bar of limitation.

(2.) The Bank, advanced a sum of Rs. 27,000/- to the first defendant for the purchase of an auto rickshaw and his mother, the 2nd defendant stood as guarantor and created an equitable mortgage in favour of the Bank. The transaction was in September, 1989 and the Bank had instituted the suit for personal decree as far as the sale of the properties mortgaged. It is very clear from the plaint that the plaintiffs have sought for a decree by sale of the properties hypothecated as well as by sale of the immovable property mortgaged. When such is the prayer the Court considers and when it finds that the transaction is proved, it passes a personal decree as well a decree by sale of the properties involved in the case.

(3.) Now the learned counsel for the appellant very strongly contends before me that the suit is not for the recovery of the amount due under a mortgage but it is an amount which is sought for by recovery of the advancement of loan. So according to him being a simple money transaction and that being an agreement between the parties the plaintiff will not get 12 years time under S.62 of the Indian Limitation Act to file a suit. In support of the same the learned counsel had relied upon the decision of the Calcutta High Court reported in Pradeep Chand Lall v. Grindlays Bank Ltd., AIR 1987 Calcutta 157. It was a case where the Bank moved a suit for realisation of the money due on a over draft account. The over draft was secured by promissory note executed by principal debtor and guarantee agreements executed by guarantors. There was also equitable mortgage of principal debtors property created. It has to be stated that it was a suit filed on the basis of an over draft account. Learned judges held that to attract the provisions of S.68 of the Transfer of property Act it is necessary that there should be a suit for recovery of the mortgage money.