SOORAJMULL NAGARMULL Vs. BANK OF TOKYO LTD

JUDGEMENT

(1.) This appeal is directed against a judgment and order of Ghose, J. passed on the 26th July, 1971 in respect of a suit instituted by the respondent No. 1 herein the Bank of Tokyo Ltd. (hereinafter referred to as the Bank). On or about 13th March, 1971 the Bank filed this suit for leave under Clause 12 of the Letters Patent; Leave under Order 2. Rule 2 of the Code of Civil Procedure, 1908; Decree for Rs. 38,78.552.58 P.; Declaration that the stocks and shares mentioned in Annexure 'D' to the, plaint stand charged and pledged for repayment of the sum of Ra 38,78,552.58 P.; with costs and interest; Decree in a form similar to Form 5 or 5A of Appendix D to the Code of Civil Procedure 1908 in respect of the stocks, shares mentioned in Annexure 'D' with modifications. Sale of the stocks and shares mentioned in Annexurs 'D' and payment of the sale proceeds thereof to the plaintiff with liberty to appropriate the same in pro tanto satisfaction of its dues; Decree for enforcement of the aforesaid Charge or pledge and realisation of the dues of the plaintiff in such form as this Hon'ble Court thinks fit and proper; Interest; Costs; Receivers; Injunction; further and other reliefs.

(2.) The claim of the Bank arises out of transactions on an overdraft account opened in the Bank in the name of the defendant No. 1, a partnership concern. In this suit an application was made under Section 68 (2) of the Transfer of Property Act (hereinafter referred to as the said Act) by the appellant herein, who was the defendant No. 1 in the suit, praying for an order that the suit and all proceedings therein be stayed until the plaintiff has exhausted all its available remedies against the mortgaged property or what remains of it and alternatively for a direction to the plaintiff to surrender and/or release and/or abandon its security and, if necessary, to retransfer the mortgaged property. This application was heard by Ghose, J. and by his judgment and order his Lordship dismissed the application. This appeal has been preferred against the same.

(3.) Mr. Deb, learned counsel appearing for the appellant, has raised two points. Firstly, he has submitted that this is a suit for mortgage money within the meaning of Section 68 (1) (a) of the said Act and that the finding of the learned Judge to the contrary was erroneous. With regard to the decision in the case of Nitya-nanda Ghosh v. Rajpur Chhaya Bani Cinema Ltd. relied upon by the learned trial Judge, Mr. Deb relied on a decision of the Division Bench of this Court in the case of Sukhada Kanta v. Joginee Kanta reported in AIR 1934 Cal 73. He has further submitted that in the case of Nityananda Ghosh v. Rajpur Chhaya Bani Cinema Ltd. (supra) it was a suit on the promissory note which, according to him is not the same in the present case. He has further submitted that Section 68 (1) (a) of the Act does not refer to cause of action. He has submitted that in the case of a suit for mortgage money there is no question of any other independent cause of action because all these so-called causes of action merge in the mortgage. It was also contended by him that in any event the lower security merges in the higher security viz., the mortgage of immovable property in this case.