BAJI RAO Vs. GANAJI

JUDGEMENT

(1.) THIS is a suit by a mortgagee against the mortgagor for enforcement of the terms of the mortgage and he prays for a decree for foreclosure. The trial court on issues 1 and 2 as to the mortgage and rights and consideration found for the Plaintiff and as regards the issue No. 4 relating to the compliance with the terms of the Money Lender's Act partially decided in favour of the Defendant that the accounts have not been supplied to the Defendant from time to time as determined by the provisions of that Act. The Court in this respect remarked that this matter would only effect the right of the Plaintiff to recover interest and costs. But under issue No. 3, that he referred to the bar of limitation and dismissed the suit as barred by period of limitation on account of Article 118 of the local Limitation Act. The appellate Court upheld this view and dismissed the first appeal. The Plaintiff, therefore, is before me in his second appeal. The preliminary objection by the Respondent's advocate that second appeal does not lie fails because for reasons that would be sufficiently evident from the latter portion of this judgment.

(2.) THE first point that comes up for consideration is whether Article 118 will be applicable or Article 133 of the local Limitation Act will apply. The first mentioned Article refers to a case of money secured on immovable property and lays down a period of 12 years from the date when the right to get that money accrues to the Plaintiff. But Article 133 of this Act is an express provision for cases of foreclosure and mortgage and has a long period of 30 years from the date of mortgage money being payable. The lower court has applied Article 118 on this ground that here the mortgage is a simple one without possession and therefore Plaintiff cannot come in for a foreclosure suit. This view would be perfectly correct if I come to the conclusion that in a mortgage of this kind Plaintiff has no right of foreclosure on account of the inherent nature of the contract and not on account of some collateral or side issue. But this deed of mortgage though without possession contains a clause to the effect that the Plaintiff will be entitled to foreclosure if the amount of mortgage is not paid.

(3.) ON other points the lower courts have found for the Plaintiff. I see no reason to disagree with them. Of course consequences of the finding of fact under issue No. 4 will have to be determined. I have it on the oath of the Plaintiff in the witness box and in the absence of any evidence of rebuttal I have no hesitation in holding that Plaintiff is a licenced money lender. Indeed it would be an act of unusual daring to swear to it when he does not hold the necessary licence, and the Defendant could have easily rebutted it. Of course, the accounts have not been supplied to the Defendant from time to time as found by the trial court and for that reason Plaintiff will not be entitled to the interest and the costs of this suit. But. I see no reason to dismiss this suit to the extent of the principal amount with foreclosure terms and a foreclosure decree.