- (1.) THIS is plaintiff's first appeal filed against the judgment and decree dated 21/12/1988 passed by Additional District Judge, Jaipur District, Jaipur in Civil Suit No.39/1988 whereby plaintiff's suit for recovery of money has been dismissed holding it to be time barred.
(2.) THE controversy involved in the present matter in nut shell is that the plaintiff-bank advanced two loans one of Rs.3000/- and another of Rs.3300/- to defendant no.1 upon mortgage of his agricultural land with the plaintiff-bank on 5/1/1973 and the last installment was made payable on 31/12/1975 but the defendant no.1 failed to make the payment, therefore, a suit for recovery of Rs.18805.86 came to be filed. The defendants refused to accept the summons and therefore the trial court proceeded exparte and after recording the evidence and hearing the plaintiff-bank, dismissed the suit for recovery holding it to be time barred. None is present for the respondents. Heard learned counsel for the appellant-bank and perused the impugned judgment and other material available on the record. It was inter alia contended that loan has been advanced at the request of defendant no.1 Sheonath and this loan was secured by mortgage of his agricultural land which was mortgaged on 5/1/1973 and the amount was to be paid in half yearly installments each of Rs.550/- and the last installment was due on 31/12/1975 and the suit has been filed on 21/7/1987 within a period of 12 years from 31/12/1975 when the last installment became due, therefore, as per Article 62 of the Limitation Act, 1963 (in short the Act of 1963) plaintiff's suit was well within the period of limitation. In support of this contention, reliance has been placed upon the judgment rendered in the case of Lasa Din Vs. Mt. Gulab Kunwar and others, reported in AIR 1932 Privy Council 207, Delhi Development Authority Vs. Skipper Construction Co. (P) Ltd. and others, reported in (2000) 10 Supreme Court Cases 130, Megah Nath and another Vs. The Collector, Cawnpore, reported in AIR (34) 1947 Allahabad 7, Maturi Umamaheswara Rao and others Vs. Pendyala Venkatrayudu and others, reported in AIR 1970 Andhra Pradesh 225 . I have considered the submissions advanced by the counsel for the appellant. From the evidence and the material placed on the record, it is found that plaintiff has proved that loan was advanced to the defendant no.1 Sheonath and a mortgage deed Ex.5 was also executed in favour of plaintiff-bank on 5/1/1973. According to the mortgage deed, the loan advanced was payable in six half yearly installments and the first installment of Rs.550/- was made payable on 30/6/1973 likewise the last installment of the same amount was made payable on 31/12/1975. Under Article 62 of the Act of 1963 (which corresponds to Article 132 of the Limitation Act,1908) a period of 12 years is provided to enforce payment of money secured by a mortgagee or otherwise charged upon immovable property and time starts to run from the date when money becomes due. Honourable the Apex Court in Delhi Development Authority's case (supra) has also held that under Article 62 of the Act of 1963 the period of limitation for enforcement of statutory charge created under section 55(6)(b) of the Transfer of Property Act is 12 years from the date when it becomes due and not three years.
(3.) NOW the crucial point for consideration is as to what is the date in the instant matter when the money became due ? This point has been considered by the Allahabad High Court in Megah Nath and another's case (supra) and it has been held as under :- Where the mortgage money is payable by installments and the deed provides that the mortgagee is entitled to recover any installment as it falls due and in default of its payment is further entitled to sue for the entire money limitation does not start when only one installment becomes due. No doubt the mortgagee has an option to sue for the entire money on the happening of the default, but if he does not exercise that option, limitation does not start running. It was further held that word 'money' refers to entire mortgage money and the limitation would not start when only one installment becomes due. In Lasa Din's case (supra), the Privy Council had occasion to consider the similar controversy and observed that mortgage money does not become due within the meaning of Article 132 (corresponding Article 62 of the Act of 1963) until both the mortgagor's right to redeem and the mortgagee's right to enforce his security have accrued. In Maturi Umamaheswara Rao and others' case (supra), it was held that money does not become due until both mortgagor's right to redeem and mortgagee's right to enforce his security have accrued. Mortgagor cannot take advantage of his own default and contend that mortgagor is bound to file the suit within 12 years from the date of committed default in paying interest. In the case on hand, as has been discussed here-in-before, it was secured loan by mortgage deed and loan was payable by installments. The last installment was made payable on 31/12/1975. Therefore, in my considered view, the period of 12 years shall start running from 31/12/1975 when the last installment became due and not from the date when the mortgage deed was executed or when the defendant-borrower has committed default in making the payment of any installment and as such the trial court has erred in holding that 12 years limitation period starts running from the 10/1/1973. ;