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V.G.Rao Advocate (Advocate)     08 April 2015

Suit for recovery of money basing on u registered mortgage

Hi every one,

"A" obtained certain amount from "B" by executing a Mortgage deed( Un registered) & handed over his original title deeds of his properties to "B" in the year 2008. Thereafter "A" had not paid single pie, either towards  agreed interest nor  towards principal amount till December 2014, and became indebted to "B".

In the Year 2014 i.e in the month of Dec-2014, "B": filed simplicity money recovery suit U/sec 26 Order VII rule 1 of C.P.C, not being the suit Under order 34 of C.P.C( i.e  Mortgage suit). along with the suit he filed Interim application U/order 38 rule 5 of C.P.C for attachment of property before Judgment.

Now my question is,  whether said suit is maintainable, as the same is hit by Indian Limitation act

If i file a petition U/o7 rule 11 of C.P.C to reject the plaint,  for the reasons that the "B" ought to have filed the suit under order 34 of of C.P.C and not u/sec 26 order 7 rule of 1 of c.p.c and the same is hit by Indian limitation act., whether my said contention stands good. Kindly help in this regard with any suitable SC Judgments, for rejection of the said suit.

Note: "B"though not filed suit under 34 of C.P.C claiming that the limitation to such suit is 12 years , since "A" executed un registered Mortgage deed in his favor.   kindly advice.



Learning

 1 Replies

V.G.Rao Advocate (Advocate)     15 April 2015

Further I would like to know whether  the said suit filed by "B" is within the limitation or not. if yes what is period of limitation in the circumstances of the case. "B" mostly relied on Section 59 of Transfer of property act, and as per the said section deposit of original title deeds is enough to create mortgage, No registration is required.

 if assuming for a moment if deposit of title deeds itself creates mortgage under sec 59 of T.P.Act, then what is the limitation period to recover the amount from mortgagor. In the aforesaid case the title deeds were deposited in the year 2008 by borrowing amount from "B" and B filed suit in the year 2014. whether suit filed by "B" is within the limitation period, if yes how? I need suitable case laws. 


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