Kerala High Court
Poulose And Anr. vs State Bank Of Travancore on 2 July, 1987
Equivalent citations: AIR1989KER79, AIR 1989 KERALA 79, (1989) 1 BANKLJ 243 (1987) KER LJ 882, (1987) KER LJ 882
ORDER S. Padmanabhan, J.
1. The matter arises from O.S. No. 53 of 1987 on the file of the Subordinate Judge, Ernakulam. Defendants are the revision petitioners. They availed of a loan from the plaintiff Bank for the purpose of purchasing plaint A schedule lorry. For that purpose they created a mortgage of plaint B schedule immovable property in favour of the plaintiff Bank by deposit of title deeds. A schedule vehicle was also hypothecated in favour of the bank for that purpose. When the bank filed the suit for enforcement of the mortgage the revision petitioners filed LA. No. 2034 of 1987 under Section 151 of the Civil P.C. with the following prayers :(1) The first defendant should be directed to deposit the entire amount claimed in the plaint with interests and costs under a fixed deposit in the plaintiff Bank itself and produce the receipt before Court, (2) On such production the plaintiff Bank should be directed to release A schedule lorry with intimation to the R.T.O. and also to release the mortgage by deposit of title deeds relating to B schedule property in favour of the second defendant and (3) the Bank should also be directed to return the original title deeds of plaint B schedule property and allow the defendants to receive from Court the memorandum of title deeds. This petition was opposed by the plaintiff and it was dismissed by the trial Court by order dt. 23-5-1987. The revision is against that order.
2. In the suit the revision petitioners did not admit the plaint claim in toto. Though they admitted liability in the written statement, the rate of interest claimed in the plaint was disputed. That is a matter for decision by the court. The question of costs also may have to be decided by the court. This is the position so far as the suit is concerned. Whether the trial court ought to have allowed the above said relief is the question for consideration in this revision petition.
3. Under Section 60 of the Transfer of Property Act, at any time after the principal money has become due, the mortgagor has a right, on payment or tender, at a proper time and place, of the mortgage-money, to require the mortgagee to deliver to the mortgagor the mortgage-deed and all documents relating to the mortgaged property which are in the possession or power of the mortgagee. This remedy is available to the mortgagor only before the mortgagee has filed a suit for enforcement of the mortgage. Subsequent to the filing of the suit this remedy is not available.
4. Then under Section 83 of the Transfer of Property Act also at any time after the principal money payable in respect of any mortgage has become due and before a suit for redemption of the mortgaged property is barred, the mortgagor, or any other person entitled to institute such suit, may deposit, in any Court in which he might have instituted such suit, to the account of the mortgagee. the amount remaining due on the mortgage. On such deposit the court shall cause notice to be issued to the mortgagee and the mortgagee may, on presenting a petition stating the amount then due on the mortgage and his willingness to accept the money so deposited in full discharge of such amount, and on depositing in the same court the mortgage deed and all documents in his possession or power relating to the mortgaged property, apply for and receive the money. In such a case the mortgage deed and all such other documents so deposited will have to be delivered to the mortgagor or such other person as aforesaid. This remedy is also available to the mortgagor only before the mortgagee has instituted a suit for enforcement of the mortgage. In the decision reported in Rajakrishna Menon v. Sundaram Pillai, 1963 Ker LT 1031 it was held that Section 83 of the T. P. Act has no application and does not enable a deposit to be made once a suit is laid. The reason is that once a suit is filed, the amount due on the mortgage can be ascertained only after the decree is passed, which may provide for interest and other matter arising in such suit for decision. The decision reported in Bank of Mysore v. B. D. Naidu, AIR 1954 Mys 168 has extended this principle to the provisions of Section 60 of the T. P. Act also. There is no other provision in the T. P. Act enabling the mortgagor to get the reliefs prayed for in the interlocutory application.
5. Order 34, Rule 4 of the C.P.C. contemplates passing of preliminary decrees in such cases. The form of such preliminary decree is given in Form No. 5 Appendix D. Clause 4(ii) of that form provides for provisions being made in the preliminary decree directing the mortgagor defendant to deposit the amount adjudged and also directing the mortgagee plaintiff to bring into court and release all documents relating to the mortgage. The only course now open to the revision petitioners to get the mortgage security, released is by getting a preliminary decree passed as stated above.
6. Their prayer before the trial court and before this court was to permit the deposit under protest with liberty to continue their contentions regarding the correctness of the amount due. That means the deposit is not unconditional. Such an offer or a deposit cannot be considered to be an unconditional offer or tender of the amount entitling the mortgagee to receive the same and release the mortgage security. What the revision petitioners want is that the amount should be kept in fixed deposit pending adjudication of the claim in the suit. They are agreeable to the withdrawal of the amount by the mortgagee plaintiff only after the claim is adjudicated by the decree. I do not think that such a relief is available to them. Therefore, even though not for the reasons stated by the trial court the order dismissing the petition will have to stand.
7. C.R.P. is therefore dismissed without any order as to costs. At the same time there will be a direction to the trial court to dispose of the suit as expeditiously as possible, preferably within a period of three months from the date of receipt of a copy of this order, by passing a preliminary decree as mentioned above. In such contingency the revision petitioners may be entitled to get the mortgage security released.
Issue photo copy.