Section 14 of limitation act
Rastogi
(Querist) 22 November 2014
This query is : Resolved
My Client(Mortgagor) paid the mortgage money 1985(Mortgage is for period between 1959-1962) and continued in possession. Mortgage deed is lost by Mortgagor.
My Client filed a permanent injunction suit in 1991 to debar Mortgagee to enter the suit property. when mortgagee tried to take the possession.
However, Trail court and first appeal held that since there is no proof for redemtion and Mortgage deed is not with Mortgagor. It can not be declared as mortgage is redeemed and permanent injunction was denied.
My Client wants filed a suit for redemption now in 2004.(immediately after first appeal judgement)
If we consider 30 years from the date of 1962 it falls on 1992. Redemption suit filed in 2004 is barred by limitation. However if we exclude the period of proceedings in legal suit between 1991 to 2004 it is not barred by limitation.
for the purpose of this suit should we exclude the period during which suit filed by Mortgagor was pending in court ? will section 14 of limitation act cover this and helpful mortgagor?
venkatesh Rao
(Expert) 22 November 2014
You are yet to file suit. Even if you exclude the period between 1991 to 2004; now we are in 2014, yet the limitation is barred.
Rastogi
(Querist) 22 November 2014
Sorry, it was wrongly mentioned. My client has already filed the suit in 2004 and it is pending for argument.
Satya nand aggarwal
(Expert) 23 November 2014
Dear Rastogi
you have not mentioned the period mentioned in the mortgage deed , You say it lost, if it lost you can get the certified copy from the office of sub Registrar, if it was oral and no document is available , How you came to know about the date of mortgage.
Any how the limitation of redemption is 30 years and it starts from the date mentioned in the mortgage deed. If the Mortgagee failed to produce the date of redemption then there is no limitation.
Firstly Mr Rao has rightly suggested you to file a suit. Now you told have already filed the suit . Certainly you will succeed. Have a look upon these two authorities of Redemption
Mortgage –Redemption- Clog on redemption- Right of redemption cannot be taken away-Court to ignore any contract the effect of which is to deprive the mortgagor of his right to redeem the mortgage.2006-1-Apex Court Judgement-page -98.
next
Clog –Mortgage for 95years- Long term is clog 1992-1-SLJ-529, 1989-AIR SC-436.
Advocate Ravinder
(Expert) 23 November 2014
If you do not have a copy of mortgage deed, obtain certified copy of it from sub registrar office. If it is not registered and it is only equitable mortgage, then give a legal notice to the Bank raising the above facts. Depending upon his reply, file a suit and pray the court to direct the bank to produce the documents which are in the custody of the bank. That is the only relief you have.
Satya nand aggarwal
(Expert) 23 November 2014
Mr Ravinder with due respect to you.
It is not a case of loan I failed to understand from where you got the information of loan of bank and how u talk about equitable mortgage.Period of thirty years is not applicable to equitable mortgage. There is lot of difference between equitable and Mortgage with possession. Querist is not asking anything about equitable mortgage.
T. Kalaiselvan, Advocate
(Expert) 26 November 2014
In my opinion, if you do not have a case, it would not have been taken on file during the year 2004 when it was filed. So, if the suit is posted for arguments, please gather some more citations and make a healthy argument citing the circumstances and facts of the case properly, you may succeed.
