Bimal Kishore Kapur vs The Chartered Bank Amritsar

D.K. Mahajan, J.—In order to appreciate the controversy in this petition, for revision, it will be proper to state the facts in some detail.

On 29th December, 1964, three mortgages were executed in favour of the plaintiff Bank. The first mortgage was to secure a sum of Rs. 45,913.82 with interest at the rate of 8 1/2 per cent. This amount was due from Bimal Kishore who mortgaged one single-storeyed building No 228/12 in Amritsar. His two brothers stood surety for the payment of this amount. In addition to this, in paragraph 17 of the mortgage-deed they proceeded to mortgage and charge in favour of the Bank for payment of all liabilities of Bimal Kishore the following properties:

Property of Kanwal Kishore:

One residential house 4 storeyed situated at Kucha Attoova Mal, inside Lohgarh Gate, Amritsar, area about 1568 Sq. ft. as per plan attached.

Half of mill premises and vacant land at Gumanpura, Chheharta, Amritsar, area about........as per plan attached.

Property of Bal Kihore:

One stable situated at Kucha Pehra Mal inside Lohgarh Gate, Amritsar, area about 680 Sq. ft. Municipal No. 3208 as per plan attached.

Half of mill premises and vacant land at Gumanpura, Chheharta, Amritsar, as per plan attached.

On the same day, Kanwal Kishore mortgaged one residential four-storeyed house situate at Kucha Attoova Mal, inside Lohgarh Gate, Amritsar and half share in mill premises and vacant land at Gumanpura, Chheharta, Amritsar, with the Bank to secure an advance of Rs. 35,089.36. Similarly, Bal Kishore mortgaged one stable situate at Kucha Pehra Mal, inside Lohgarh Gate, Amritsar, and half share in mill premises and vacant land at Gumanpura, Chheharta, Amritsar, with the Bank to secure an advance of Rs. 38,607.47.

The Bank brought the present suit for recovery of the amount due on all the three mortgages and joined all the three brothers in the same suit. An objection was taken to the frame of the suit by the defendants on the plea that there was misjoinder of parties and causes of action. This objection was overruled by the trial court. The present petition for revision has been preferred against the trial Court''s order.

Mr. Bhagirath Dass contended that the provision of order 1, rule 3 and order 2, rule 3 of the CPC do not cover the case and similarly, section 67A of the Transfer of Property Act is of no assistance. He relied upon the decision of the Nagpur High Court in AIR 1937 99 (Nagpur) , and contended that this decision is on all fours with the present case. On a superficial examination of the decision, of courts, the Learned Counsel''s contention is correct, but if the matter is probed deeply, it will be found that this contention cannot be accepted.

Section 67-A of the Transfer of Property Act, is in the following terms:-

A mortgagee who holds two or more mortgages executed by the same mortgagor in respect of each of which he has right to obtain the same kind of decree u/s 67, and who sues to obtain such decree on any one of the mortgages, shall, in the absence of a contract to the contrary, be bound to sue on all the mortgages in respect of which the mortgage-money has become due.

In enjoins that a mortgagee who holds two or mortgages from the same mortgagor and against whom he has the right to obtain some kind of decree u/s 67-A has to sue on all the mortgages provided the money has become due. It is not Mr. Bhagirath Dass''s case that the money has not become due on the mortgages. Therefore, the mortgagee could sue the mortgagor if there were two or more mortgages executed by that mortgagor and the money secured by those mortgages had become due.

Adverting to the facts of the present case, as soon as the Bank decided to sue to recover the debt due on the mortgage by Bimal Kishore in its favour, it had necessarily to sue the two mortgagor-sureties, namely Kanwal Kishore and Bal Kishore. Kanwal Kishore and Bal Kishore had independently executed on the same day two independent mortgages in favour of the Bank with regard to the same property and therefore, u/s 67-A the amount of these mortgages having become due, a claim respecting them had also to be made in the same suit. Thus, the necessary consequence was that the mortgagee had to sue on all the three mortgages and this course is warranted by section 67-A of the Act. The provisions of Section 67A are mandatory and, therefore, there is no escape from the conclusion that the suit has been rightly framed.

The Learned Counsel then relied on the decision of the Rangoon High Court in Ko Aung Bye v. Ko Po Kyaing AIR 1931 Rang. 208, for the proposition that in similar circumstances section 67-A will not come into play. Here again, if one goes by the head-note, the contention would seem to carry the day but if the authority is read in extenso it will be found that section 67A was held not applicable because the mortgages which were dealt with by the Rangoon High Court were prior to the coming into force of section 67-A.

For the reasons recorded above, I dismiss this petition. There will be no order as to costs. The parties are directed to appear before the trial court on 10th January, 1972.