Madhya Pradesh High Court
Life Insurance Corporation Of India vs Ramji Kewat And Ors. on 2 May, 2001
Equivalent citations: 2001(5)MPHT425
Author: Dipak Misra
Bench: Dipak Misra
ORDER Dipak Misra, J.
1. The factual matrix and the question of law being similar in these writ petitions they were heard analogously and are disposed of by this common order. For the sake of clarity and convenience the facts in W.P. No. 6905/2000 are herein depicted.
2. The petitioner, Life Insurance Corporation of India (hereinafter referred to as 'the Corporation') was established by notification dated 1st September 1956 under Section 3 of the Life Insurance Corporation Act, 1956. The affairs of the Corporation are governed by the aforesaid Act and the Rules framed thereunder as well as under the Insurance Act, 1938. The central office of the Corporation is located at Jeevan Bima Marg, Bombay and under the Central Office there are Zonal Offices. The Central Zonal Office is located at Bhopal controlling the Divisional and Branch Offices in the entire State of Madhya Pradesh. There is a Divisional Office at Raipur and under the said Divisional Office there are a number of Branch Offices.
3. It is averred in the writ petition that the Corporation filed an O.A. No. 10/99 before the Debts Recovery Tribunal, Jabalpur (hereinafter referred to as 'the Tribunal') for realization of a certain sum from the respondent Nos. 1 and 2. It was pleaded before the Tribunal that the respondent No. 1 had applied to the Corporation on 10-8-88 for grant of loan of Rs. 2,50,000/- for the purpose of constructing a cinema building. The Corporation sanctioned the loan in its M-1 Scheme by issuing a loan offer letter dated 21-1-1989. The said respondent No. 1 accorded its acceptance for the aforesaid loan amount in the loan offer letter itself on the terms and conditions mentioned therein. The amount of loan was to be repaid within a period of 10 years in 20 equal half yearly instalments commencing from the date of disbursement of the first instalment of the loan with interest at the rate of 16% per annum payable half yearly and compounded with half yearly rests and in case of default in the payment of instalment of interest and/or repayment of principal, an additional interest at the rate of 2.5% per annum would become payable on the outstanding loan, in addition to the rate of interest, as aforesaid. Out of the aforesaid sanctioned amount of loan, the Corporation paid Rs. 2,00,000/- by Cheque No. 345116 dated 23-1-1989 drawn on the Punjab National Bank, Raipur and the respondent No. 1 executed a receipt acknowledging the payment of the aforesaid loan in favour of the Corporation. The respondent No. 1 executed a Demand Promissory Note dated 23-1-1989 for Rs. 2,00,000/-promising to pay the aforesaid sum on demand alongwith the interest as incorporated therein. The defendants, as a collateral security of the aforesaid loan amount, created an equitable mortgage in respect of the land situate on Khasra No. 1396/1 and 1396-2 admeasuring an area of 0.166 and 0.137 hectares respectively, P.C. 28 situate in village, Tedesara district, Rajnandgaon and also deposited the original sale deeds dated 17-8-1987 and 2-12-1987 respectively with the Corporation. The details of the property mortgaged are mentioned in Schedule-I of the original application. It was also putforth in the original application that the property purchased under the aforesaid sale deeds related to Shiv Shanker Kewat, defendant No. 2, and Vijay Kumar Kewat, the son of the defendant No. 1. As Vijay Kumar Kewat was a minor at the time of creation of mortgage in favour of the Corporation, the defendant No. 1 filed an application under Section 8 of the Hindu Minority and Guardianship Act, 1956 in the Court of the Additional District Judge, Rajnandgaon for grant of permission to mortgage the property with the Corporation for the aforesaid loan and the said Court by order dated 9-12-1988 granted the permission to the defendant No. 1 for creation of equitable mortgage and accordingly the defendant No. 1 executed the necessary documents in favour of the Corporation. It has also been putforth that Shiv Shanker Kewat also applied for the loan and the same was granted by the Corporation to the tune of Rs. 2,00,000/- and towards the security for the said amount he had created an equitable mortgage by depositing of sale deeds. It was putforth in the application that the respondent Nos. 1 and 2 who were the defendant Nos. 1 and 2 before the Tribunal were jointly and severally liable for the payment of the loan. As the respondent No. 1 did not pay the instalments of interest/principal, notices of demand were sent on various occasions but in spite of the said notices, no response was made which compelled the Corporation to file the aforesaid application for realization of Rs. 12,08,456/-up to 30th November, 1999 together with interest at the rate of 17.5% with half yearly rest. It was setforth in the application that the cause of action for the filing of the application arose on 23-1-89, 5-4-90, 9-11-91, 27-4-92, 28-10-94 and 22-11-99. The prayer was also made in the application for sale of the mortgaged properties as detailed in the Schedule-I of the application and appropriation of sale proceeds towards outstanding loan amount. The Tribunal issued summons to the defendants therein but neither the defendants appeared nor filed counter affidavit as required under Rule 12 of the Debts Recovery Tribunal (Procedure) Rule, 1993 read with Regulation of Practice, 1998.
4. The Tribunal addressed itself to the issue whether the application filed by the Corporation was within the period of limitation. It was contended by the Corporation as the debt is secured by mortgage, the limitation for filing of such an application would be twelve years in view of Article 62 of the Limitation Act, 1963 (hereinafter referred to as the Act). It was also pointed out before the Tribunal that the application was filed within 12 years from the date of mortgage and that being so it was within the period of limitation. The Tribunal in its order opined that it appears from the pleadings as well as from the documents annexed to the application that the claim of the Corporation is based on the Demand Promissory Note dated 23-01-89 and there was no further acknowledgement of the security/balance confirmation by the Corporation from the defendants therein and, therefore, the application would be governed under Article 19 of the Act for which the period of limitation provided is three years. The Tribunal also came to opine that the fact that immovable property is mortgaged as a Collateral security for loan advanced would not bring the application within the purview of Article 62 of the Act. In the light of this view, the Tribunal rejected the application being hopelessly barred by Limitation and dismissed it with costs.
5. A counter affidavit has been filed by the respondent Nos. 1 and 2. It is noteworthy to state here that the counter affidavit up to paragraph 15 is vague and the averments have been cryptically denied and it has been stated that various sub paragraphs are argumentative in nature and the contents are irrelevant and certain assertions do not require any specific reply. What has been essentially urged in the counter affidavit is that the petitioner could not have preferred this petition as an appeal has been provided under the Act and should not have knocked at the doors of this Court under Articles 226 and 227 of the Constitution of India.
7. I have heard Mr. Sanjaya Agrawal, learned counsel for the petitioner and Mr. Pramod Verma, learned counsel for the respondent Nos. 1 and 2. I have also heard Mr. Kishore Shrivastava, learned counsel appearing for the respondents in W.P. No. 6907/2000.
8. Mr. Pramod Verma as well as Mr. Kishore Shrivastava has raised a preliminary objection that the petitioner could have preferred an appeal under Section 20 of the Act which is an effective and efficacious remedy and at its instance the writ petition is not maintainable. The learned counsel has commended me to a decision rendered in the case of Ganga Naryan Mishra v. State Bank of India and Ors., 2001 MPLJ 21. As a preliminary objection has been raised, before I advert to the merits of the case, I think it apposite to deal with the same.
9. The moot question that falls for consideration is whether this Court can issue a prerogative writ in the nature of certiorari when there is availability of an alternative remedy provided under the Act itself. In this context I may profitably refer to a case of Jila Parishad Moradabad v. Kundan Sugar Mills, AIR 1968 SC 98 wherein the Apex Court held as under :
"A provision like Section 128 of the U.P. District Boards Act for an appeal against an assessment to tax is there, but the fact that the petitioner has not availed of it, does not oust the jurisdiction of the High Court to entertain a petition under Article 226 and it is for the High Court to exercise its discretion whether to entertain the petition or not. Where there is nothing to show that the discretion has not been properly exercised by the High Court the Supreme Court would not interfere."
(quoted from the placitum)
10. In the case of Champalal Binani v. The Commissioner of Income Tax, West Bengal and Ors., AIR 1970 SC 645 the Apex Court ruled thus :
"......A writ of certiorari is discretionary : it is not issued merely because it is lawful to do so. Where the party feeling aggrieved by an order of an Authority under the Income-tax Act has an adequate alternative remedy which he may resort to against the improper action of the authority and he does not avail himself of that remedy the High Court will require a strong case to be made out for entertaining a petition for a writ. Where the aggrieved party has an alternative remedy the High Court would be slow to entertain a petition challenging an order of a taxing authority which is ex facie with jurisdiction. A petition for a writ of certiorari may lie to the High Court, where the order is on the face of it erroneous or raises question of jurisdiction or of infringement of fundamental rights of the petitioner..."
11. At this juncture I may profitably refer to a decision rendered in the case of A.V. Venkateswaran v. R.S. Wadhwani, AIR 1961 SC 1506 wherein the Apex Court held as under :
"The wide proposition that the existence of an alternative remedy is a bar to the entertainment of a petition under Article 226 of the Constitution unless (1) there was a complete lack of jurisdiction in the officer or authority to take the action impugned or (2) where the order prejudicial to the writ petitioner has been passed in violation of the principles of natural justice and could, therefore, be treated as void or non est and that in all other cases, Courts should not entertain petitions under Article 226 or in any event not grant any relief to such petitioners cannot be accepted. The two exceptions to the normal rule as to the effect of the existence of an adequate alternative remedy are by no means exhaustive, and even beyond them a discretion vests in the High Court to entertain the petition and grant the petitioner relief notwithstanding the existence of an alternative remedy. The broad lines of the general principles on which the Court should act having been clearly laid down, their application to the facts of each particular case must necessarily be dependent on a variety of individual facts which must govern the proper exercise of the discretion of the Court, and in a matter which is thus pre-eminently one of discretion, it is not possible, or even if it were, it would not be desirable to lay down inflexible rules which should be applied with rigidity in every case which comes up before the Court."
(underlining is mine)
12. In this context I may usefully refer to the decision rendered in the case of State of U.P and Ors. v. Indian Hume Pipe Co. Ltd., AIR 1977 SC 1132 wherein their Lordships laid down as under :
"In the instant case, the question as to what is the true connotation of the words "sanitary fittings" and whether the hume pipes manufactured and sold by the respondent were sanitary fittings within the meaning of that expression was a question of law and since the entire material on the basis of which this question could be determined was placed before the Sales Tax Officer and it pointed in one and only one direction, namely, that the hume pipes were not sanitary fittings and there was nothing to show otherwise, the High Court was justified in entertaining the writ petition. Moreover, there is no rule of law that the High Court should not entertain a writ petition where an alternative remedy is available to a party. It is always a matter of discretion with the Court and if the discretion has been exercised by the High Court not unreasonably or perversely, it is settled practice of this Court not to interfere with the exercise of discretion by the High Court. The High Court in the present case entertained the writ petition and decided the question of law arising in it and in our opinion rightly.
(emphasis supplied)
13. In the case of Shiv Shanker Dal Mills v. State of Haryana and Ors., AIR 1980 SC 1037 was held as under :
"Where public bodies, under colour of public laws, recover people's money, later discovered to be erroneous levies, the Dharma of the situation admits of no equivocation. There is no law of limitation, especially for public bodies, on the virtue of returning what was wrongly recovered to whom it belongs. Nor is it palatable to our jurisprudence to turn down the prayer for high prerogative writs, on the negative plea of 'alternative remedy' since the root principle of law married to justice, is ubi jus ibi remedium."
Their Lordships further proceeded to lay down as under :
"Article 226 grants an extraordinary remedy which is essentially discretionary, although founded on legal injury. It is perfectly open for the Court, exercising this, flexible power, to pass such order such as public interest dictates and equity projects.
Courts of equity may, and frequently do, go much further both to give and withhold relief in furtherance of the public interest than they are accustomed to go where only private interests are involved. Accordingly, the granting or withholding of relief may properly be dependent upon consideration as of public interest...."
14. In the case of Kuntesh Gupta v. Management of Hindu Kanya Mahavidyalaya, AIR 1987 SC 2186 the Apex Court spoke thus :
"Further, it is well established that an alternative remedy is not an absolute bar to the maintainability of a writ petition, when an authority has acted wholly without jurisdiction, the High Court should not refuse to exercise its jurisdiction under Article 226 of the Constitution on the ground of existence of an alternative remedy. In the instant case, the Vice-Chancellor had no power of review and the exercise of such a power was absolutely without jurisdiction. Indeed, the order passed by the Vice-Chancellor on review was a nullity; such an order could be challenged before the High Court by a petition under Article 226 of the Constitution and the High Court was not justified in dismissing the writ petition on the ground that an alternative remedy was available to the appellant under Section 68 or the U.P. State Universities Act."
15. It is apposite to refer to a decision rendered in the case of Sarat Chandra v. State of Orissa and Ors., AIR 1979 Orissa 143 wherein a Division Bench held as under :
"Where the writ petition is filed by the members of the Committee of Management of a co-operative society governed by the Orissa Co-operative Societies Act to challenge a notice to show cause against its supersession on the ground that the initiation of the proceeding is without jurisdiction as a pre-condition therefore of consultation with the financing bank of the society has not been satisfied, the bar of Article 226(3) cannot be invoked by saying that alternative remedy of revision and appeal is available against the final order of supersession."
16. In the case of Dhaneswar Nayak v. State of Orissa, 1986 (II) OLR 113, the Court expressed thus :-
"It is well-known that non-entertainment of writ petitions for failure to avail the alternative remedy is not a constitutional requirement but is more a matter of prudence and propriety. The rule of exhaustion of statutory remedies is not relating to the jurisdiction of the Court to entertain the petition, but is a matter of self-imposed restriction based on a rule of policy and discretion rather than a rule of law. The termination of service of the petitioner plainly was without jurisdiction and on the face of it void. No useful purpose would have been served by compelling the petitioner to go before the alternate forum. A writ petition is maintainable without exhausting the statutory remedy where the act complained of is prima facie without jurisdiction."
17. In the case of Kamala Kanta v. O.S. Board of Homeopathic Medicine, Bhubaneswar, AIR 1988 Orissa 82, it has been held as under :
"It has been authoritatively held in a series of decisions of the Supreme Court as well as of this Court that the prohibition to grant relief under Article 226 of the Constitution of India when an alternative remedy has not been resorted to is only a self-imposed limitation adopted more for the necessity of propriety than as a mandatory requirement of law and that such a policy has no application where the act complained of is that of violation of the principles of natural justice, or one of lack of jurisdiction. Even apart from it, nothing prevents the prerogative of the High Court to issue a writ of certiorari in a fit case where recourse to the alternative remedy would be unnecessary, lengthy and circuitous and the question involved for interpretation would be more appropriately decided by the High Court, such as cases involving purely questions regarding interpretation of law."
(emphasis supplied)
18. In the case of Ganga Naryan (supra) the learned single Judge after referring to certain judgments of the Apex Court held that the appeal under Section 20 of the Act may be onerous but that is in consonance with the object and reason of the Act. In that case the Court did not hold that discretion can never be exercised under Articles 226 and 227 of the Constitution of India. This Court did only say that the mechanism of alternative remedy in the statute does not create an absolute bar. This Court dealt with certain well established principles which are to be kept in view while exercising the discretion. I have referred to the decisions of the Apex Court only to indicate that there are no inflexible rules for exercising discretion by a writ Court while issuing a prerogative writ of certiorari. It would depend upon the facts of each case. As has been held in the case of Indian Hume Pipe (supra) there is no impropriety in the use of discretion if the adjudication involves a pure question of law. In the case of Champalal (supra) the Apex Court expressed the view that where an order on its face is erroneous and raised question of jurisdiction, the High Court can entertain the writ petition. In this context I may profitably refer to a decision rendered in the case of ML. Sethi v. R.P. Kapur, AIR 1972 SC 2379, wherein their Lordships observed that a wrong decision on question of limitation is a jurisdictional error for the only reason the error is considered vital by the Court.
19. In this context I may profitably quote a passage from the decision rendered in the case of Reg v. Hillington, London Borough Concil, 1974-1 QB 720, wherein Lord Widgery, C.J. stated thus :
"It has always been a principle that certiorari will go only where there is no other equally effective and convenient remedy...."
"The statutory system of appeal is more effective and more convenient than application for certiorari and the principal reason why it may prove itself more convenient and more effective is that an appeal to (say) the secretary of State can be disposed of at one hearing whether the issue between them is a matter of law or fact or policy or opinion or a combination of some or all of these..... whereas of course an appeal for certiorari is limited to cases where the issue is a matter of law and then only it is a matter of law appearing on the face of the order."
"An application for certiorari has however this advantage that it is speedier and cheaper than the other methods and in a proper case therefore it may well be right to allow it to be used..... I would, however, define a proper case as being one where the decision in question is liable to be upset as a matter of law because on its face it is clearly made without jurisdiction or in consequence of an error of law."
20. From the aforesaid enunciations of law it becomes crystal clear that there is no bar for entertaining a writ petition under Articles 226 and 227 of the Constitution of India where an alternative remedy has not been taken resort to. It is a self imposed restraint and restriction by the Court itself. While exercising such power under the Constitution the Court is required to keep in view certain factors. As has been noticed when an order is passed without jurisdiction or when principles of natural justice are violated or when the vires of an act is challenged, or where enforcement of any of the fundamental right is sought or where a pure question of law arises or where a strong case has been made out the Court may exercise the discretion. It is to be further noted here the Apex Court has also observed that the grounds are not exhaustive. No strait-jacket formula can be laid down. It will depend upon the facts of each case.
21. I will be failing in my duty if I do not deal with contentions raised by Mr. Pramod Verma, learned counsel for the respondents who has urged with vehemence that this Court in the case of Ganga Naryan (supra) has held that where an alternative remedy exists the writ petition is not maintainable. Mr. Verma has referred to paragraph 4 learned counsel appearing for the bank had raised a preliminary objection with regard to the maintainability of the writ petition in view of the remedy of statutory appeal being available to the petitioner under Section 20 of the Act. The learned counsel has also referred to the last portion of the paragraph 9 of the judgment to show that the learned single Judge has upheld the preliminary objection in regard to the maintainability of the writ petition. The submission of Mr. Verma can not be accepted to be correct in as much as a decision has to be read in entirety keeping the context in view. It is well settled in law that a sentence from here and there should not be read to find the ratio decidendi of a case. Words should be read keeping in view the context to arrive at the real ratio of the decision in question. It is the duty of the Court, while applying the decision to a later case, to carefully ascertain the true principle laid down by the previous decision. It is to be noted that in paragraph 4 of the said judgment the learned single Judge has observed that the learned counsel for the Bank had submitted that the Act itself having provided for entire mechanism the petitioner cannot be allowed to invoke the remedy provided under Article 227 of the Constitution of India. In paragraph 9, the learned Judge has held as under :
"......It is trite that availability of alternative remedy under the law, is not one which bars the jurisdiction of the High Court to entertain the petition or to deal with it, but is rather a rule which Courts have laid down for the exercise of their discretion....."
22. Quite apart from the above the learned single Judge thereafter addressed himself to the issue whether the appeal provided under Section 20 of the Act is an efficacious remedy. After referring to the certain decisions the learned Judge came to hold as under :
".....Thus, precedents on this question, in unequivocal terms go to support the view that the remedy of appeal before the Appellate Tribunal is efficacious and the remedy of writ petition is inappropriate. I am of the considered opinion that when the right is created by statute which itself prescribes the remedy or in other words in a case when the statute itself has prescribed the entire mechanism resort must be had to that particular remedy before seeking the discretionary remedy under Articles 226 and 227 of the Constitution of India. In my opinion remedy of appeal before the Appellate Tribunal is adequate and efficacious remedy and the petitioner cannot be permitted to abandon to resort the statutory remedy of appeal and to invoke the extraordinary jurisdiction of this Court under Article 227 of the Constitution :"
23. Thus in my considered view the learned Judge held that remedy of appeal is efficacious and the petitioner in that case could not have been permitted to abandon to take resort to the statutory remedy of appeal. Thus, by no stretch of imagination it can be said that the ratio of the said judgment is that when an alternative remedy is available the writ petition before this Court is not entertainable or maintainable under any circumstance. Though the learned counsel for the respondents endeavoured hard to impress this Court that the 'raison d' etre' of the decision is 'maintainable' and attempted to convert it to 'cause ce'le'bre, I may pronto add a bagtelle is perceived as 'tour de force' solely because, of their 'id'ee fixe' with the term maintainable and maladroit in appreciation of a decision in proper context. The imperium of this Court cannot be stifled or smothered by bon mot or polemic. No cul-de-sec is permissible. The emphasis by the learned counsel for the respondents on the term 'maintainable' in a way tantamounts to dissecting the conception in a manner which is comparable, to borrow a simile used by Lord Diplock, etymological chameleon. In my considered view the learned single Judge has not frescoed the picture as the learned counsel for the respondents would like it to be painted.
24. Now to the question whether this Court in the present batch of cases should exercise the jurisdiction under Articles 226 and 227 of the Constitution of India. This Court cannot be oblivious of the fact that it was the Life Insurance Corporation of India which had instituted an application for recovery of the amount in question. The contention of the Corporation before the Tribunal was that the lonee had created an equitable mortgage of immovable property. While cryptically recording the opinion, the Tribunal has observed that the Original Application has been filed on the basis of a demand promisory note dated 23-1-1989. That apart the Tribunal observed that even if an immovable property is mortgaged as a Collateral Security for loan advance the same will not bring the present application within the purview of Article 62 of the Limitation Act. The Tribunal has opined that Article 21 of the Limitation Act would be applicable.
25. Thus from the aforesaid it is plain as noon day that the Tribunal has decided the issue of limitation against the Corporation and rejected the application being barred by limitation. It is worthnoting here that the defendants therein had not entered appearance. True it is, any Court or Tribunal has the sacrosanct duty to see whether the suit or proceeding is barred by limitation. But in the case at hand the Tribunal has also observed that even if an immovable property is mortgaged as a collateral security against the loan advanced the same will not bring the present application within the purview of the Article 62 of the Limitation Act. As has been stated earlier the issue of limitation is a matter of jurisdiction as it pertains to the very vital aspect of the litigation. As the Tribunal has totally misdirected itself relying on a particular provision relating to the period of limitation I am of the considered view the same raises a pure question of law and can be adjudicate in exercise under power under Articles 226/227 of the Constitution of India and the Corporation should not be asked to take resort to alternative remedy.
26. Now to the merits of the case. Section 2(g) of the Act defines the term 'debt', it is as under:
"2(g) "debt" means any liability (inclusive of interest) which is alleged as due from any person by a bank or a financial institution or by a consortium of banks or financial institutions during the course of any business activity undertaken by the bank or the financial institution or the consortium under any law for the time being in force, in cash or otherwise, whether secured or unsecured, or whether payable under a decree or order of any Civil Court or otherwise and subsisting on, and legally recoverable on, the date of the application."
Section 24 provides for limitation which reads as under :
"24. Limitation:- The provisions of the Limitation Act. 1963 (36 of 1963) shall, as far as may be, apply to an application made to a Tribunal."
Thus from the aforesaid it is quite vivid that the provisions of the Limitation Act, 1963 shall apply to the application made before the Tribunal. It is to be noted that in the case of State Bank of India v. Samneel Engineer Company and Ors., (1997) BC 655 wherein R.C. Lohoti, J. (as his Lordship then was) has held as under :
"Debt is an essential ingredient of a mortgage. There may be a debt without a mortgage but there can be no mortgage without a debt. Properties are offered as security only for securing recovery of debt. If debt is repaid the mortgage ceases to be a mortgage. Even if the term debt would not have been defined in Act No. 51 of 1993 the mortgage would have been included within the meaning of debt. This is the general law and settled trend of judicial opinion. However, Act 51 of 1993 incorporates the definition of debt in its interpretation clause by way of abundant caution and gives it out a very wide meaning. The quintessence of the definition is the existence of any liability founded on an allegation as due from any person; the creditor being a bank or a financial institute or a consortium of the two. The liability may be in cash or otherwise. It may be secured or unsecured. A decree or order of any Civil Court or otherwise may intervene or not; the only rider being that the liability must be legally recoverable. The definition would cover all the cases where the liability is secured by a mortgage, charge, hypothecation or in any other manner known to law. An effort at carving out a mortgage away and out of the definition of debt is futile."
27. Now the question that falls for consideration which Article would govern the field. Article 19 reads as under :
"19. Description Period of Time from which of suit limitation period begins to run For money Three years When the loan is payable for money made."
lent.
Article 21 reads as under :
"Description Period of Time from which of suit limitation period begins to run 21. For money Three years. When the loan is leant under an made" agreement that it shall be payable on demand. Article 62 reads as follows : "Description Period of Time from which of suit limitation period begins to run 62. To enforce Twelve years. When the money sued payment of money for becomes due." secured by a mortgage or otherwise charged upon immovable property.
28. The Tribunal has opined, I may repeat at the cost of repetition, that even if an immovable property is mortgaged as a security it will not come within the purview of the Article 62 of the Act. In this context I may refer to the decision rendered in the case of Mrs. Rosy George v. State Bank of India, AIR 1993 Kerala 184 wherein it has been held as under :
"Now we may take up the contention regarding limitation. The plaint claim is sought to be enforced against the plaint A schedule property and against the defendants. As per Section 96 of the Transfer of Property Act the provisions of which apply to a simple mortgage, so far as may be, apply to a mortgage by deposit of title deeds also. Under Article 62 of the Limitation Act the period for enforcing payment of money secured by a mortgage or otherwise charged upon immovable property is 12 years, and the period would start to run when the money sued for becomes due. The equitable mortgage was on 19-7-1979. The suit was instituted on 10-4-1985. Thus the suit is within time with respect to the claim against A schedule property."
Their Lordships further proceeded to state as follows in paragraph 17 :
"...By virtue of Section 96 of Transfer of Property Act the provisions of simple mortgage are applicable to a mortgage by the deposit of title deeds. Personal liability either express or implied being one the ingredients of simple mortgage, the first defendants' personal liability as one of the mortgagors cannot be doubted."
Yet in another decision rendered in the case of Manoj Kumar Saha and Anr. v. Nabadwip Chandra Poddar and Anr., AIR 1978 Calcutta 111 it has been held as under :
"A mortgage by deposit of title deeds can be effected for securing the repayment of a debt otherwise barred. In such a case, the money becomes due on the day the mortgage is created by the deposit of title deeds and the limitation of 12 years for the enforcement of the mortgage has to be counted from the date of the mortgage. The suit filed within 12 years of the date of the alleged creation of the equitable mortgage by deposit of title deeds, is not barred."
30. In this context I may profitably refer to a decision rendered in the case of Delhi Development Authority v. Skipper Construction Co. (P) Ltd., AIR 2000 SC 573 and Ors. wherein it has been held as under :
"32. Article 62 of the Limitation Act, 1963 [which corresponds to Article 132 of the Limitation Act 1908] provides a period of 12 years, "to enforce payment of money secured by a mortgagee or otherwise charged upon immovable property." Time runs from the date "when money becomes due."
33. From the above Article, it is clear that the period of limitation for enforcement of the statutory charge created under Section 55(6)(b) is 12 years from the date when becomes due and not 3 years. The period remains the same even for enforcement of the charge on the substituted security."
In this context I may also refer to the decision rendered in the case of Central Distillary and Chemical Works Ltd. v. Gurbharatjee Singh and Ors., AIR 1993 Punjab and Haryana 25 wherein it has been held where the suit for payment of money is secured by a mortgage the claim is covered by Article 62 and not by the Article 19. The Court held that the said Article is applicable notwithstanding the fact that the parties has been running the business of account.
31. On the basis of the aforesaid enunciation of law it can safely be concluded that if an equitable mortgage is created in favour of the Corporation Article 62 of the Limitation Act would be attracted. The main thrust of the matter is if an equitable mortgage has been created. Submission of Mr. Agrawal is that when the title deeds have been deposited with the Corporation there remains no scintilla of doubt that an equitable mortgage has been created in favour of the Corporation by way of collateral security and hence, Article 62 of the Act would be applicable. At present I am not inclined to address myself whether an equitable mortgage has been created in law. I am only inclined to hold that the finding recorded by the Tribunal that the mortgage created by way of collateral security would not attract the the applicability of the Article 62 of the Act is absolutely fallacious. I may hasten to add that Mr. Pramod Verma and Kishore Shrivastava, learned counsel appearing for the loanees could not wriggle out of the legal preposition except stating that the mortgage in question cannot be regarded as equitable mortgage in law. While refraining myself from deciding the aforesaid factual matrix I am inclined to hold that the observation by the Tribunal that if an immovable property is mortgaged as a collateral security will not bring the application within purview of Article 62 of the Act is absolutely erroneous and can not be given stamp of approval. Mr. Sanjaya Agrawal, learned counsel for the petitioner submitted that the Corporation would prove in law before the Tribunal that mortgage created by way of collateral security are equitable mortgages. His submission is that the Tribunal should be directed to decide all the issues together including the issue whether there is an equitable mortgage in favour of the Corporation or not. The aforesaid submission of Mr. Agrawal is quite fair and sound. As the issue goes to the very root of the matter and is a vital one I am inclined to quash the order passed by the Tribunal and accordingly I so direct. It would be open to the parties to putforth their respective contentions before the Tribunal. As the defendants did not file the written statement they would be permitted to file written statement before the Tribunal within a reasonable time and thereafter the Tribunal shall decide all the issues together so that the controversy between the parties is put to rest.
32. Keeping in view the aforesaid discussion, the order passed by the Tribunal in all the cases is quashed and it is directed that the Tribunal shall proceed with the matter as per law keeping in view that in case of an equitable mortgage Article 62 of the Limitation Act would be applicable and decide the lis accordingly. The Tribunal shall decide all the issues together to avoid a piecemeal hearing. It would be open to the respondents to raise the plea that there was no equitable mortgage of immovable property in favour of the Corporation.
33. The writ petitions are accordingly disposed of without any order as to costs.