GULKANDI Vs. HARNARAYAN PHOOLCHAND

JUDGEMENT

(1.) The short point involved in this revision at the instance of the defendants relates to the question of commencement of the period of IN limitation for bringing a suit for redemption of a mortgage.

(2.) It was not disputed that the transaction in between the parties was of a mortgage of the immoveable property comprising of two shops with possession for securing the repayment of a loan of Rs. 50,000/-. It was agreed in between the parties that since tha mortgage was with possession there will be no liability on the mortgagor for payment of interest. The term of the mortgage with possession was that of one year. As disclosed in the deed of mortgage, the mortgagor was entitled to redeem the mortgage on payment of the amount under the mortgage within the period of one year, The deed of mortgage, however, contained one more clause which was, undisputedly, not enforceable being a clog on the equity of redemption. The said clause mentioned that on failure of the mortgagor to repay the amount within a period of one year, the transaction would be deemed to be a sale of tha property in question, and that the mortgagor will be left with no right, title or interest in the same after tha expiry of the said period. The mortgage was effected on 5th January 1948. The plaintiffs served the defendant-mortgagee with a notice asking him to redeem the mortgage on payment of the amount of loan. This notice was served on 27th December 1977. However, the defendants did not respond to the same and did not hand over possession of the mortgaged property. The plaintiffs thereafter, moved an application, as contemplated by Section 83 of the Transfer of Property Act, after depositing the amount of Rs. 50,000/- remaining due on the mortgage on 3-1-1978, The defendants. however, objected and. therefore, those proceedings became infructuous. Under these circumstances, the plaintiffs were constrained to institute the suit giving rise, to this revision claiming the right of redemption. The suit was instituted on 14th October, 1978.

(3.) The applicant-defendants raised an objection to the maintainability of the suit on the ground of limitation, by contending that since the mortgage was effected on 5-1-1948 and the plaintiffs were free to repay the amount of loan on any day even before the expiry of the period of one year as disclosed in the document, the amount under the mortgage became due not on the expiry of the period of one year, as shown in the deed of mortgage, bui immediately after 5-1-1948 itself, i.e., the date of mortgage, and. therefore, the prescribed period of limitation being 30 years, the suit instituted on 14-10-1978 was barred by time. A preliminary issue was framed by the trial Court and the same had been decided against the defendants by the order impugned.