JUDGMENT
H. Suresh, J.
1. Defendants Nos. 1 to 4 have taken out this chamber summons for revoking the leave granted under clause XII of the Letters Patent.
2. The plaintiffs have filed the suit to recover a sum of Rs. 11 crores odd from defendants Nos. 1 to 4. Defendants Nos. 5, 6 and 7 are the other financial institutions with whom the plaintiffs have a pari passu agreement, whereby they have agreed inter se that their respective rights with regard to their claim of each of them as against defendants Nos. 1 to 4 shall rank pari passu without any preference or priority of one over the other or others for all purposes and to all intents.
3. It is an admitted position that all the facilities to defendants Nos. 1 to 4 were granted at Quilon and Punalur, Kerala. The amounts were disbursed at Quilon. Defendants Nos. 1 to 4 carry on business and reside out of Bombay. The immovable properties which are given as security are also situated out of Bombay. However, the plaintiffs have sought to file the suit in this court on the basis that the pari passu agreement between the plaintiffs and defendants Nos. 5, 6 and 7 was entered into in Bombay and that the mortgage deed was executed at Bombay. That in how the plaintiffs applied for leave under clause XII of the Letters Patent which was granted on April 19, 1987.
4. There are two properties which have been mortgaged to the plaintiffs, out of which, one is at Quilon in the State of Kerala (exhibit ‘A’ to the plaint) and the other is at Calcutta (schedule ‘B’ to the plaint). As regards the immovable properties in Kerala, the plaintiffs have stated in para 37 of the plaint that the first defendants deposited in Bombay with defendant No. 5, acting on behalf of defendant No. 6 and as constituted agent for the plaintiffs and defendants Nos. 6 and 7, who accepted the deposit of title deeds of the said immovable properties in order to secure the repayment of the facilities granted by the plaintiffs and defendants Nos. 5 to 7. But as regards the properties situated at Calcutta, the plaintiffs have stated that the first defendants by their letter dated October 19, 1977, deposited at the plaintiff’s branch office at Trivandrum, title deeds of the Calcutta properties with an intent to create an equitable mortgage for the repayment of the amount then due under certain facilities. They say that the said property situated at Calcutta ranks pari passu along with defendants Nos. 5 to 7 by virtue of the pari passu arrangement entered into by and between the plaintiffs and defendants Nos. 5 to 7 at Bombay, as mentioned above.
5. It is well-settled that a suit by a mortgagee of land to enforce his mortgage by sale is not a suit for land within the meaning of clause XII of the Letters Patent. Therefore, a suit by a mortgagee to enforce such a mortgage by sale can be maintained in the High Court even when the mortgaged land is situated wholly outside the limits of the original civil jurisdiction of the High Court, but either the defendant must dwell or carry on business or personally work for gain within the limits of such jurisdiction. At the commencement of the suit, the cause of action must have arisen wholly, or, in case the leave of the court shall have been first obtained, in part within the said limits (see the Full Bench case of Hatimbhai Hassanally v. Framroz Eduljee Dinshaw, AIR 1927 Bom 278 and also Prahlad Madhoba Ruikar v. Aboobaker Abdul Rehman and Co., AIR 1936 Bom 313. The part of the cause of action could be the creation of mortgage by deposit of title deeds of the land in question. In the present case, it could be said that in respect of the immovable properties situated in Kerala, the title deeds were deposited in Bombay as mentioned in para 37 of the plaint and that, therefore, the plaintiffs having obtained the requisite leave from the court under clause XII, can sustain the suit in this court. But in respect of the Calcutta properties, there is no such deposit of title deeds within the jurisdiction of this court.
6. Mr. Rohit Kapadia submitted that the plaintiffs have also relied on the pari passu agreement entered into by and between the plaintiffs and defendants Nos. 5 to 7, which covers all the securities given by defendants Nos. 1 to 4 to each of these financial institutions. His submission is that since that agreement was entered into in Bombay and since ultimately the distribution of the amount has to be ranked in accordance with the same, it can be said that a part of the cause of action has arisen within the limits of this court. I am not inclined to accept this submission of Mr. Kapadia. Defendants Nos. 1 to 4 are not parties to the said pari passu agreement. It is an arrangement inter se amongst the plaintiffs and defendants Nos. 5 to 7. It will come into operation only when a decree is passed and the amounts are realised by enforcement of the securities. As far as defendants Nos. 1 to 4 are concerned, the said pari passu agreement can never be a cause of action.
7. Mr. Kapadia submitted that if leave is revoked in respect of that part of the cause of action which relates to the Calcutta properties, the plaintiffs would be put to an anomalous situated, inasmuch as, they will not be able to file a separate suit in that behalf. In my view this is a misconceived argument. In fact, this situation has been created by the plaintiffs themselves, inasmuch as, if a proper suit had been filed in the Kerala Court, all these questions would not have arisen. The plaintiffs filed the suit here mainly to save court-fees, which I am told would be about Rs. 1 crore in Kerala, whereas the maximum court-fee here is only Rs. 15,000. In other words, it was more for convenience and not for any genuine reason that the plaintiffs have chosen to file the suit in this court. Technically, however, the plaintiffs will be able to sustain the suit in so far as it relates to the Kerala property, as mentioned above.
8. Mr. Subramanian has drawn my attention to the case of Kurivalli Lingayya Setty v. Sitharam Agarwala, . The question is whether the plaintiffs can be allowed to include a cause of action in respect of which this court has no territorial jurisdiction on the ground that the plaintiffs’ right to relief against defendants Nos. 1 to 4 arises out of a series of acts in respect of which the plaintiffs can proceed on the basis of a cause of action which has arisen within the jurisdiction of this court. The answer should be in the negative. No court can override the express provisions prescribing the limits of the court’s jurisdiction. The rules provide for clubbing of different causes of action, but that can arise only if all the defendants reside within the jurisdiction of a particular court and in respect of causes of action arising within its jurisdiction. The same is the principle with regard to joinder of parties.
9. In the result, leave granted under clause XII of the Letters Patent is revoked to the extent the suit relates to enforcement of the mortgage of properties situated in Calcutta as mentioned in schedule ‘B’ to the plaint, inasmuch as this court has no jurisdiction to entertain such a cause of action. The rest of the prayers are rejected. Costs of the chamber summons to be costs in the cause.
10. Mr. Chitnis applies for stay of the above order. There is no question of granting stay in a matter of this type. Application is rejected.