KAMALAMBAL Vs. MPURUSHOTAM NAIDU

JUDGEMENT

(1.) This appeal raises a question of limitation. The suit was by a second mortgagee against the legal representatives of the deceased mortgagors. The prior mortgagee brought the property to sale and it failed to realise a sufficient amount to pay the appellant's mortgage debt or indeed sufficient to pay the whole of the amount owing under the first mortgage. The plaintiff then filed the suit claiming that the mortgagor had failed to repay the amount which he had covenanted to repay in the mortgage deed and that the mortgagee had been deprived of the whole of the security in consequence of the wrongful act or default of the mortgagor is not keeping up the interest, payments or redeeming the prior mortgage. The case therefore was presented in the plaint as one under Clause (a) and Clause (b) of Section 68, T.P. Act. The question which arose and which arises here was and is, first of all, what was the suit bond, that is to say, when did the money under it become payable? It is quite clear that it is an on-demand bond and that therefore the time of limitation commenced to run from the date of the execution of the bond. It is quite clear that, if that is the right date to take, then the personal remedy sought for against the mortgagor would be barred by limitation. But it was argued in the trial Court and here that by reason of the fact that the mortgage bond contains the following words: When you are in need of the principal amount if you give three months notice to us we agree to pay the aggregate sum of principal and interest remaining due within the time appointed by you and get back the documents thereon. If we fail to do so, either you or your nominees will be entitled as under the section of the Transfer of Property Act to sell the property either privately or by public auction.... the giving of three months notice was a condition precedent to the right to receive the money, that is to say, that the cause of action arose when that three months notice was given. With that contention am unable to agree. The provisions with regard to the three months notice which appear on the mortgage bond are exactly in accordance with those which are in Section 69, T.P. Act, which deal with when the power of sale is to be exercised and under Sub-Clause (1) of that section it it said that no such power shall be exercised unless and until notice in writing requiring payment of the principal money has been served on the mortgagor and default has been made in payment of the principal money or part thereof for three months after such service. Those words which appear in the mortgage bond are clearly in pursuance of that sub-clause. They do not create a condition precedent at all to the claim for the money but merely refer to the exercise of the power of sale which the mortgagee has. Although he has his claim and although the money is due and must be claimed within the period of limitation which commences on the date of the bond, this being in my opinion clearly an on-demand bond, the power of sale is not to be exercised unless and until the statutory notice has been given and there has been a default to comply with it. Therefore, limitation started to run in this case from the date of the execution of the bond. That however does not dispose of the case. The personal remedy against the mortgagor is, of course, clearly barred. But there is the other point that the period of limitation did not start to run until the plaintiff had been deprived of his security, that is to say, until it was sold in exercise of the power of sale by the mortgagee, i.e., when the cause of action arose. If that contention is right, of course, the suit was within time. That is a matter which arises under Section 68-(b) and with regard to that there is a remedy, that is that the mortgagee may requite the mortgagor within a reasonable time to give him another sufficient security for his debt and if the mortgagor fails to do so then he can sue him for the mortgage money.

(2.) In my view there is a condition precedent to the suit against the mortgagor for the mortgage money, namely that a notice should have been given to the mortgagor requiring him to furnish another sufficient security for the debt. Unless that is done, no suit in my view against the mortgagor claiming the mortgage money can be brought. Although it it stated in the plaint that that notice was given, we have been told by the learned Counsel who was present at the trial that the plaintiff was required to produce a copy of the notice alleged to have been given but was unable to do so. Indeed it would appear from the argument presented in the trial Court that if any notice at all had been given the plaintiff's case was that it was an oral notice. It would even appear that the argument addressed to the learned trial Judge was one that it was not necessary to give any notice at all. In any event, whatever that contention may have amounted to, it is clear that the plaintiff did not provide the necessary evidence in support of the claim which arose under Section 68-(b), T.P. Act. The case therefore proceeded on the footing that the remedy sought was the personal remedy which arose under the personal covenant given by the mortgagor to repay the mortgage amount. An attempt was made to show that this was not an on-demand bond but that attempt failed. Under these circumstances, I am clearly of the view that the only point which we have to consider here is the latter point and for the reasons which I have already given the contention raised on that point fails; and this appeal is dismissed with costs. Butler, J.

(3.) I am of the same opinion.