POULOSE Vs. STATE BANK OF TRAVANCORE

JUDGEMENT

(1.) The matter arises from O.S. No. 53 of 1987 on the file of the Subordinate Judge, Ernakulam. Defendants are the revision petitioners. They availed of a loan from the plaintiff Bank for the purpose of purchasing plaint A schedule lorry. For that purpose they created a mortgage of plaint B schedule immovable property in favour of the plaintiff Bank by deposit of title deeds. A schedule vehicle was also hypothecated in favour of the bank for that purpose. When the bank filed the suit for enforcement of the mortgage the revision petitioners filed I.A. No. 2034 of 1987 under S.151 of the Civil P. C. with the following prayers : (1) The first defendant should be directed to deposit the entire amount claimed in the plaint with interests and costs under a fixed deposit in the plaintiff Bank itself and produce the receipt before Court, (2) On such production the plaintiff Bank should be directed to release A schedule lorry with intimation to the R.T.O. and also to release the mortgage by deposit of title deeds relating to B schedule property in favour of the second defendant and (3) the Bank should also be directed to return the original title deeds of plaint B schedule property and allow the defendants to receive from Court the memorandum of title deeds. This petition was opposed by the plaintiff and it was dismissed by the trial Court by order dt. 23-05-1987. The revision is against that order.

(2.) In the suit the revision petitioners did not admit the plaint claim in toto. Though they admitted liability in the written statement, the rate of interest claimed in the plaint was disputed. That is a matter for decision by the court. The question of costs also may have to be decided by the court. This is the position so far as the suit is concerned. Whether the trial court ought to have allowed the above said relief is the question for consideration in this revision petition.

(3.) Under Section 60 of the Transfer of Property Act, at any time after the principal money has become due, the mortgagor has a right, on payment or tender, at a proper time and place, of the mortgage-money, to require the mortgagee to deliver to the mortgagor the mortgage-deed and all documents relating to the mortgaged property which are in the possession or power of the mortgagee. This remedy is available to the mortgagor only before the mortgagee has filed a suit for enforcement of the mortgage. Subsequent to the filing of the suit this remedy is not available.