BANK OF BARODA Vs. NARAYAN YASHWANT GOLANDE

JUDGEMENT

(1.) This is plaintiff's appeal taking exception to the dismissal of the major part of its claim in a suit for recovery of money.

(2.) Defendant No. 1 was in need of money for the development of agriculture. He approached the plaintiff with a request for financial accommodation and the plaintiff sanctioned a loan of Rs. 15,000.00 to Defendant No. 1. Shivaram Golande, father of Defendants Nos. 2 to 5 and Krishna Bobade, father of Defendant No. 6, stood surety for the repayment of the loan advanced to defendant No. 1. On 5.6.1970 and 13.3.1991 respectively Defendant No. 1 executed two promissory notes showing the receipt of Rs. 15,000.00 which sum be agreed to repay together with interest mentioned in the said promissory notes. By way of collateral security defendant No. 1 executed a mortgage deed on 30.5.1970. The loan not having been repaid in full, the plaintiff filed a suit for recovery of the amount due as on 31.3.1973, which amount comes to Rs. 16,253.50 ps. and interest as from 1.4.1973 up to the date of suit's institution which interest came to Rs. 39,754.30 ps. making a total of Rs. 55,997.80 ps. Plaintiff solicited a decree against the defendant Nos. 1 to 6 for the above amount and on their failure to pay the sum for sale of the mortgage property. Defendant No. 1 filed a written statement which is at Exh. 20 and Defendants Nos. 2 to 6 another such written statement which is at Exh. 25. One of the defences raised was that the claim was barred by time. Pleadings summarised above gave rise to various issues and learned trial Judge passed a decree for the first item aforementioned i.e. for the sum of Rs. 16,253.60 ps. plus proportionate cost and pendente lite and future interest thereon at the rate of 6% per annum. It is the dismissal of the remaining part of the claim which have given rise to the present appeal.

(3.) The manner in which the suit has been handled by the lower Court is deplorable. That Court has totally forgotten the existence of a mortgage solicitation and plaintiff's solicitation of a decree for recovery of money by sale of the mortgaged property. In calculating the limitation and also assertaining the exact amount due, the mortgage deed which is at Ext. 32, is of vital importance. Plaintiff had no need to fall back upon any acknowledgement for the computation of limitation. The suit being for recovery of money secured under a mortgage deed it was Art. 62 of the Limitation Act, 1963, which governed limitation in this case. This article is worded as under:- <FRM>JUDGEMENT_138_LAWS(BOM)11_1992_1.html</FRM>