Meiyappan Servai vs Meenakshi Achi

S. Ganesan, J.—This petition is directed against the judgment and decree of the District Munsif, Pattukkottai in S. C. S. No. 699 of 1966.

The respondent filed the suit in question for recovery of a sum of Rs. 400 (together with Rs. 88 interest on the said amount) advanced by him

under a mortgage bond executed by the petitioner herein (defendant) in his favour on 12th June, 1962 for a sum of Rs. 750 on the allegation that

subsequently the petitioner refused to have the mortgage registered. As per the mortgage deed, the balance of Rs. 350 had to be paid by the

respondent before the Sub-Registrar at the time of registration. The Court had decreed the suit accepting the respondent''s contention that the suit

though filed on 13th, March, 1966 three years after the date of the mortgage bond, is saved from the bar of limitation, as the mortgage money of

Rs. 750 is repayable in twelve months from the date of the bond.

The only question which is pressed by the learned Counsel for the petitioner in the course of his arguments in the revision is that the suit is barred

by limitation.

The mortgage bond is not registered and a personal convenant contained in the bond shows that the petitioner had undertaken to pay the sum of

Rs. 750 secured by the bond together with interest at 6 per cent in 12 months from the date of the bond. The document further states, that in

default of payment, the sum is payable with compound interest and can be recovered from the mortgage property.

It is well settled that, where a mortgage deed fails for want of registration or attestation or for any other purpose, it is admissible as evidence of a

personal covenant contained therein for payment of the amount (vide Pulaka veetil Mythalakulangara Kunhu Moidu v. Thiruthipalli Madhav Menon

32 Mad. 410 and Kesavamattam Koda Nayakamma Vs. Edara Venkayya and Another, . Nor can it be disputed that where time limit is fixed for

the repayment of money in a simple money bond, limitation will start only from that date.

The trial Court overruled the plea of limitation and decreed the suit on the basis of the judgment of the Rajasthan High Court in Karan Raj and

Another Vs. Chunnilal and Others, . In that case the mortgage failed and the suit was decreed for the amount secured by the mortgage on the basis

of a personal covenant contained in the document, though the suit was laid more than three years from the date of advance. In that document there

was a stipulation that the mortgagor would be able to redeem the property only on paying the money after a period of four years in one lump sum.

The learned judges overruled the contention that the personal covenant was available only if the mortgage turned out to be a good one and not

when it failed and have observed that whither the mortgage failed or not, the mortgagee had given four years time to the mortgagor to repay the

money and that, having so accommodated the defendant lie could not sue the latter before the expiry of four years. The cause of action in that suit

for the repayment could not arise before four years.

The learned Counsel for the petitioner does not challenge the principles enumerated above ; but contends in the course of his arguments that the

cause of action in the suit had arisen immediately after the petitioner (the mortgagor) refused to register the bond that in the absence of any

evidence as to the date when the petitioner actually refused to register, it can be taken that the refusal was after the expiration of four months, the

time prescribed for registration, that once the cause of action had started it cannot be normally stopped or suspended (under Section 9 of the

Indian Limitation Act) and that the present suit is barred as it had not been filed within three years after the time prescribed for registration of the

bond had expired. The learned Counsel points out that there is a clear allegation in the plaint to the effect that the mortgage failed as the petitioner

had refused to register the bond and -that the petitioner was bound to return the sum of Rs. 400 paid as part of the consideration.

It may no doubt be said that the cause of action arises when a plaintiff could first maintain an action to successful termination ; but then it is also

clear that in order to defeat a suit on a transaction, the cause of action which arose earlier must be one in respect of the same transaction to sue. In

this case the respondent had no doubt a right to sue for the money when the petitioner committed breach of contract by refusing to register the

mortgage bond ; but then he is entitled under the law to give up the mortgage and to sue upon the personal covenant to pay the money as in the

case of a simple money bond. Two contracts are comprised in the transaction ; one is a mortgage and the other a loan transaction ; and both these

contracts are separate and divisible. The causes of action in respect of these two transactions are distinct and separate. In view of the fact that the

petitioner had refused to register the mortgage, the mortgage had failed and it was open to the respondent to rescind the mortgage and to file a suit,

but then he is not bound to do so and he is entitled under the law to rely upon the personal covenant to repay the money.

It may be that the 12 months period stipulated was for the repayment of the entire mortgage amount of Rs. 750 and that out of this amount, only

a sum of Rs. 400 alone had been paid ; but it appears to me that this circumstance can make no difference whatsoever and that the respondent is

entitled to insist that he can pay the sum of Rs. 400 at the end of 12 months prescribed for the repayment of the loan. Where a period is stipulated

for the repayment of the entire sum it cannot be said that the said period will not enure for the repayment of a portion of the sum actually paid

under the contract. Take for instance, a bond which recites that a sum of Rs. 2,000 had been paid and stipulates that it was repayable in the two

years from the date of the bond and it is conceded that only a sum of Rs. 1,500 had been actually paid. Can it be pleaded in a suit for recovery of

Rs. 1 500 under that bond that the period of two years would not enure for that sum and that limitation should be reckoned from the date of the

advance? The answer is ''no''; and the case is much stronger where, as in the present instance, the petitioner is a defaulter.

The cause of action for the suit based on the personal covenant had arisen only after the period of two years stipulated for the repayment of the

entire amount and the fact that the respondent had a cause of action when the petitioner failed to register the mortgage can be of no consequence in

this case. The two contracts are, as I lave already observed entirely different and the cause of action for this suit is in respect of the personal

covenant and not the breach of the petitioner to register the mortgage.

In the result, the Civil Revision Petition is dismissed; but, under the circumstances without costs.