MOHINDER SINGH JUBBAL Vs. GRINDLAYS BANK LTD

JUDGEMENT

(1.) This revision petition is directed against the order of the trial Court dated Aug. 12, 1981, whereby the two preliminary issues, arising in the suit for the recovery of Rs.16,74,596.98, out of which the present revision petition has arisen, have been decided against the defendant-petitioner.

(2.) M/s. Grindlays Bank Limited, the plaintiff-respondent, filed a suit on Sept. 25, 1978, on the allegations that defendant-respondent No. 2 was a partnership firm while defendants-respondents Nos. 1 and 3 were its partners and had been carrying on the business in their factory at Faridabad and that defendants Nos. 1 and 3 were also the guarantors for the re-payment of the amount due to the plaintiff from defendant-respondents No. 2. It was also alleged that the defendants had been taking loans from the plaintiff from time to time and, thus the total amount of Rs.11,57,684.17 was due to the plaintiff from the defendants. It was also alleged that a sum of Rupees 5,16,912.82 was due to the plaintiff as interest and that the total amount due to it, thus, came to Rs.16,74,596.98. Since the petitioner created mortgage over his property by depositing the title deeds of his property with it, it was prayed that on that oasis, a preliminary mortgage decree for Rs.16,74,596.98, be passed in its favour. It was also pleaded that a final mortgage decree for the sale of the mortgaged property be passed in the event of the defendants failing to satisfy the preliminary decree and that the sale proceeds thereof be paid to it towards the payment of the decretal amount. In the written statement filed on Nov. 29, 1978, it was inter alia pleaded that the suit was liable to be stayed as the matter in issue in the suit was also directly and substantially in issue in a previously instituted suit between the same parties, (suit No. 107 of 1975), pending in the High Court at Delhi. It was further pleaded that in the previous suit, the plaintiff had originally prayed for the recovery of Rs.11,57,684.17, on the basis of the pledge of goods by hypothecation, the pledge of the machinery and the alleged mortgage of the property in suit, but subsequently, the plaintiff gave up the relief for the sale of the mortgaged property in that suit and as such, the suit out of which this revision petition has arisen, was barred under O. 2, R. 2 of the Civil P. C. (hereinafter called the Code). The other pleas taken in the written statement are not relevant at this stage. On the pleadings of the parties, the trial Court framed the following two preliminary issues:

(3.) The learned counsel for the petitioner, vehemently contended that both the preliminary issues, referred to above, have been wrongly decided by the trial Court. The subsequent suit filed by the plaintiff at Faridabad, was barred under O. II, R. 2 of the Code and, in any case, it was liable to be stayed under S. 10 of the Code. The main thrust of the argument of the learned counsel is that it was the same loan for which the previous suit had been filed in the Delhi High Court and for the recovery of which, the subsequent suit, has been filed at Faridabad. Thus, according to the learned counsel, the cause of action is the same in both the suits and, therefore, in view of the provisions of O. II, R. 2(3) of the Code, the plaintiff was debarred from suing for any relief which he so omitted in the previous suit, filed in the Delhi High Court. The argument proceeds that even though the relief claimed may be separate in both the suits, yet the cause of action for claiming the relief is the same in both the suits and, therefore, the case was fully covered by the provisions of O. II, R. 2(3) of the Code. In support of his contention, that the subsequent suit was barred under O. II, R. 2(3) of the Code, the learned counsel placed reliance on Mohammad Khalil Khan v. Mahbub Ali Mian, AIR 1949 PC 78; Abnashi Singh v. Smt. Lajwant Kaur, (1976) 78 Punj LR 828 : (AIR 1977 Punj 1); Haryana Cooperative Sugar Mills Ltd., Rohtak v. Joint Hindu Family Firm styled as M/s. Gupta Ram Supply Company, (1976) 78 Pun LR 313 : (AIR 1976 Punj 117); Manubothula Rama Rao v. Manubothula Venkayamma, AIR 1931 Mad 705; Kempe Gowda v. Lakkegowda, AIR 1952 Mys 99 and Jai Narain v. Syed Ali Murtaza, AIR 1951 Pat 190. Reliance was placed on Shorab Merwanji Modi v. Mansata Film Distributors, AIR 1957 Cal 727 C. Raman and Co., Bombay v. Modern Motor Works, Ludhiana, (1973) 75 Punj LR 529 : (AIR 1973 Punj 454) ; Kedar Nath v. Firm Hira Lal Brothers, (1975) 77 Punj LR 250 and Channabasappa Kamadal and Sons v. Kishan Chand and Co., AIR 1972 Mys 112, by the learned counsel in support of the proposition that the subsequent suit was liable to be stayed by the trial Court under Section 10 of the Code. On the other hand, the learned counsel for the respondent submitted that the provisions of O. II, R. 2(3) of the Code are not attracted in the present case because the cause of action in both the suits is quite distinct and separate, and different reliefs have been claimed in both the suits. The previously instituted suit in the Delhi High Court is for the recovery of the money simpliciter on the basis of the goods pledged with the plaintiff Bank by the defendants, whereas the subsequent suit at Faridabad has been filed on the basis of the mortgage created by them for the payment of the loan advanced. Thus, there are two distinct causes of action. Moreover, according to the learned counsel, it was on the objection of the defendants in the Delhi High Court that the plaintiff was required to amend his plaint because the Delhi High Court was not competent to pass any decree in the previous suit on the basis of the mortgaged property as the same was situated outside its territorial jurisdiction. The learned counsel also contended that though the loan may be the same, yet the pledging of the goods for the recovery of the said loan and the creating of the mortgage on the immoveable property of the defendants by deposit of the title deeds of the property, are independent obligations and, therefore, both the suits, as such, are competent and maintainable. It was further submitted that the limitation for the recovery of the loan simpliciter was three years under Art. 1 of the Limitation Act, 1963, (hereinafter called the Act), whereas the limitation to enforce the payment of the money secured by mortgage or otherwise charged upon immovable property was 12 years under Art. 62 of the Act, from the date when the money sued for becomes due. Thus, the legislature itself has made a distinction and has provided two separate remedies with different periods of limitation. In support of his contention, the learned counsel relied upon Kishan Narain v. Pala Mal, AIR 1922 PC 412, Sidrammappa v. Rajashetty, AIR 1970 SC 1059; Ma Kyi v. P. R. M. A. C. T V R Chettyar Firm AIR 1935 Rang 365, Gulabchand Makanji v. Motapondha Vibhag Tenants' Co-operative Agricultural Society Ltd. AIR 1962 Guj 296; Mandal & Co. v. Fazul Ellahie, (1914) ILR 41 Cal 825: (AIR 1915 Cal 126) and S. A. Ananatanarayana Iyer v. Savithri Ammal, (1913) ILR 36 Mad 151. On the question of the stay of the subsequent suit under Section 10 of the Code, it was contended that any decision, given in the previously instituted suit in the Delhi High Court, would not operate as res judicata in the subsequently instituted suit at Faridabad, and the relief claimed in both the suits being separate and distinct, the provisions of S. 10 of the Code, are not attracted. In support of this contention, reliance, was placed on Smt. Naurati v. Mehma Singh, AIR 1972 Punj and Har 421;Sankhla Industries v. Hiralal Pukhraj, AIR 1973Raj 306 and Shaw Wallace & co. Ltd. v. Bholanath Madanlal Sherwala, AIR 1975 Cal 411.