{"id":19066,"date":"2007-01-12T00:00:00","date_gmt":"2007-01-11T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/s-nazeer-ahmed-vs-state-bank-of-mysore-and-ors-on-12-january-2007"},"modified":"2016-04-26T21:49:29","modified_gmt":"2016-04-26T16:19:29","slug":"s-nazeer-ahmed-vs-state-bank-of-mysore-and-ors-on-12-january-2007","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/s-nazeer-ahmed-vs-state-bank-of-mysore-and-ors-on-12-january-2007","title":{"rendered":"S. Nazeer Ahmed vs State Bank Of Mysore And Ors on 12 January, 2007"},"content":{"rendered":"
Supreme Court of India<\/div>\n
S. Nazeer Ahmed vs State Bank Of Mysore And Ors on 12 January, 2007<\/div>\n
Author: P Balasubramanyan<\/div>\n
Bench: H.K. Sema, P.K. Balasubramanyan<\/div>\n
           CASE NO.:\nAppeal (civil)  175 of 2007\n\nPETITIONER:\nS. NAZEER AHMED\n\nRESPONDENT:\nSTATE BANK OF MYSORE AND ORS\n\nDATE OF JUDGMENT: 12\/01\/2007\n\nBENCH:\nH.K. SEMA & P.K. BALASUBRAMANYAN\n\nJUDGMENT:\n<\/pre>\n
J U D G M E N T
\n(Arising out of SLP(C) No.20624 of 2004)<\/p>\n
P.K. BALASUBRAMANYAN, J.\n<\/p>\n
1.\t\tLeave granted.\n<\/p>\n
2.\t\tDefendant No. 1, the appellant, borrowed a sum
\nof Rs.1,10,000\/- from the plaintiff Bank for the purchase
\nof a bus.  He secured repayment of that loan by
\nhypothecating the bus and further by equitably
\nmortgaging two items of immovable properties.  The Bank
\nfirst filed O.S. No. 131 of 1984 for recovery of the money
\ndue.  The said suit was decreed.  The Bank, in execution,
\nsought to proceed against the hypothecated bus.   The bus
\ncould not be traced and the money could not be recovered.
\nThe Bank tried to proceed against the mortgaged
\nproperties in execution.  The appellant resisted by
\npointing out that there was no decree on the mortgage and
\nthe bank could, if at all, only attach the properties and
\ncould not sell it straightaway.  That objection was upheld.
\nThe Bank thereupon instituted the present suit, O.S. No.
\n35 of 1993, for enforcement of the equitable mortgage.
\nThe appellant resisted the suit by pleading that the suit
\nwas barred by Order II Rule 2 of the Code of Civil
\nProcedure, that the transaction of loan stood satisfied by a
\ntripartite arrangement and transfer of the vehicle to one
\nFernandes, that there was no valid equitable mortgage
\ncreated and no amount could be recovered from him
\nbased on it and that the suit was barred by limitation.\n<\/p>\n
3.\t\tThe trial court held that the suit was not hit by
\nOrder II Rule 2 of the Code.  It also held that the appellant
\nhas not proved that the loan transaction has come to an
\nend by the claim being satisfied.  But, it dismissed the suit
\nholding that the suit was barred by limitation.  It also held
\nthat there was no creation of a valid equitable mortgage
\nsince the memorandum in that behalf was not registered.
\nThe Bank filed an appeal in the High Court.  The High
\nCourt held that the memorandum did not require
\nregistration and that a valid and enforceable equitable
\nmortgage was created.  The suit was held to be in time.  It
\nheld that the suit was hit by Order II Rule 2 of the Code.
\nBut, since the appellant had not challenged the finding of
\nthe trial court that the suit was not hit by Order II Rule 2
\nof the Code by filing a memorandum of cross objections,
\nthe plea in that behalf could not be and need not be
\nupheld.  It purported to invoke Order XLI Rule 33 of the
\nCode to grant the Bank a decree against the appellant
\nthough it refused a decree to the Bank against the
\nguarantor.  It did not disturb the finding of the trial court
\non the tripartite arrangement set up by the appellant
\nbased on the alleged transfer of the vehicle.\n<\/p>\n
4.\t\tBeing aggrieved by the decree, the appellant
\napproached this Court with the Petition for Special Leave
\nto Appeal.  This Court while issuing notice, confined the
\nappeal to two questions.  They were:\n<\/p>\n
1)\tWhy the second suit would not be hit by
\nOrder 2 Rule 2, C.P.C.?; and <\/p>\n
2)\tIn view of the finding arrived at vide para 19
\nof the judgment (Annexure P-2), why
\ndefendant No.1 should not have been held to
\nhave been discharged from the liability?\n<\/p>\n
5.\t\tWe do not think it necessary to broaden the
\nscope of challenge in this appeal in the light of the
\nfindings entered and in the circumstances of the case.  We
\nare therefore inclined only to examine the two questions
\nposed by this Court at the stage of issuing notice in the
\nPetition for Special Leave to Appeal.\n<\/p>\n
6.\t\tWe will first consider whether the suit is barred
\nby Order II Rule 2 of the Code.  Whereas the trial court
\nheld that the suit on the equitable mortgage filed by the
\nBank was not barred by Order II Rule 2 of the Code
\nespecially in the context of Order XXXIV Rules 14 and 15
\nof the Code, the High Court was inclined to the view that
\nthe suit was barred, though it did not accede to the prayer
\nof the appellant to dismiss the suit as being hit by Order II
\nRule 2 of the Code.  The High Court seems to have been of
\nthe view that since the Bank in the prior suit omitted to
\nsue on the equitable mortgage without the leave of the
\ncourt, the present suit was barred.  But it proceeded to
\nrely on Order XLI Rule 33 of the Code and ended up by
\ngranting the Bank a decree against the appellant.  It is not
\nvery clear to us why Order XLI Rule 33 of the Code or the
\nprinciple embodied therein has to be invoked in the case,
\nsince the plaintiff Bank had filed an appeal against the
\ndecree dismissing its suit and was claiming the relief
\nclaimed in the suit..\n<\/p>\n
7.\t\tThe High Court, in our view, was clearly in error
\nin holding that the appellant not having filed a
\nmemorandum of cross-objections in terms of Order XLI
\nRule 22 of the Code, could not challenge the finding of the
\ntrial court that the suit was not barred by Order II Rule 2
\nof the Code.  The respondent in an appeal is entitled to
\nsupport the decree of the trial court even by challenging
\nany of the findings that might have been rendered by the
\ntrial court against himself.  For supporting the decree
\npassed by the trial court, it is not necessary for a
\nrespondent in the appeal, to file a memorandum of cross-
\nobjections challenging a particular finding that is rendered
\nby the trial court against him when the ultimate decree
\nitself is in his favour.  A memorandum of cross-objections
\nis needed only if the respondent claims any relief which
\nhad been negatived to him by the trial court and in
\naddition to what he has already been given by the decree
\nunder challenge.  We have therefore no hesitation in
\naccepting the submission of the learned counsel for the
\nappellant that the High Court was in error in proceeding
\non the basis that the appellant not having filed a
\nmemorandum of cross-objections, was not entitled to
\ncanvass the correctness of the finding on the bar of Order
\nII Rule 2 rendered by the trial court.\n<\/p>\n
8.\t\tWe also see considerable force in the submission
\nof learned counsel for the appellants that the High Court
\nhas misconceived the object of Order XLI Rule 33 of the
\nCode and has erred in invoking it for the purpose of
\ngranting the plaintiff Bank a decree.  This is a case where
\nthe suit filed by the plaintiff Bank had been dismissed by
\nthe trial court.  The plaintiff Bank had come up in appeal.
\nIt was entitled to challenge all the findings rendered
\nagainst it by the trial court and seek a decree as prayed
\nfor in the plaint, from the appellate court.  Once it is
\nfound entitled to a decree on the basis of the reasoning of
\nthe appellate court, the suit could be decreed by reversing
\nthe appropriate findings of the trial court on which the
\ndismissal of the suit was based.  For this, no recourse to
\nOrder XLI Rule 33 is necessary.  Order XLI Rule 33
\nenables the appellate court to pass any decree that ought
\nto have been passed by the trial court or grant any further
\ndecree as the case may require and the power could be
\nexercised notwithstanding that the appeal was only
\nagainst a part of the decree and could even be exercised in
\nfavour of the respondents, though the respondents might
\nnot have filed any appeal or objection against what has
\nbeen decreed.  There is no need to have recourse to Order
\nXLI Rule 33 of the Code, in a case where the suit of the
\nplaintiff has been dismissed and the plaintiff has come up
\nin appeal claiming a decree as prayed for by him in the
\nsuit.  Then, it will be a question of entertaining the appeal
\nconsidering the relevant questions and granting the
\nplaintiff the relief he had sought for if he is found entitled
\nto it.  In the case on hand therefore there was no occasion
\nfor applying Order XLI Rule 33 of the Code.  If the view of
\nthe High Court was that the suit was barred by Order II
\nRule 2 of the Code, it is difficult to see how it could have
\nresorted to Order XLI Rule 33 of the Code to grant a
\ndecree to the plaintiff in such a suit.  In that case, a
\ndecree has to be declined.  That part of the reasoning of
\nthe High Court is therefore unsustainable.\n<\/p>\n
9.\t\tNow, we come to the merit of the contention of
\nthe appellant that the present suit is hit by Order II Rule 2
\nof the Code in view of the fact that the plaintiff omitted to
\nclaim relief based on the mortgage, in the earlier suit O.S.
\nNo. 131 of 1984.  Obviously, the burden to establish this
\nplea was on the appellant.  The appellant has not even
\ncared to produce the plaint in the earlier suit to show
\nwhat exactly was the cause of action put in suit by the
\nBank in that suit.  That the production of pleadings is a
\nmust is clear from the decisions of this Court in Gurbux
\nSingh Vs. Bhooralal [(1964) 7 S.C.R. 831] and M\/s
\nBengal Waterproof Limited Vs. M\/s Bombay
\nWaterproof Manufacturing Co. & Anr. [(1996) Supp. 8
\nS.C.R. 695].  From the present plaint, especially
\nparagraphs 10 to 12 thereof, it is seen that the Bank had
\nearlier sued for recovery of the loan with interest thereon
\nas a money suit.  No relief was claimed for recovery of the
\nmoney on the foot of the equitable mortgage.  In that suit,
\nthe Bank appears to have attempted in execution, to bring
\nthe mortgaged properties to sale.  The appellant had
\nobjected that the suit not being on the mortgage, the
\nmortgaged properties could not be sold in execution
\nwithout an attachment.  That objection was upheld.  The
\nBank was therefore suing in enforcement of the mortgage
\nby deposit of title deeds by the appellant.\n<\/p>\n
10.\t\tFrom this, it is not possible to say that the
\npresent claim of the plaintiff Bank has arisen out of the
\nsame cause of action that was put forward in O.S. No. 131
\nof 1984.   What Order II Rule 2 insists upon is the
\ninclusion of the whole of the claim which the plaintiff is
\nentitled to make in respect of the cause of action put in
\nsuit.  We must notice at this stage that in respect of a suit
\nin enforcement of a mortgage, the bar under Order II Rule
\n2 has been kept out by Order XXXIV Rule 14 of the Code.
\nRule 15 of Order XXXIV makes the rules of Order XXXIV
\napplicable to a mortgage by deposit of title deeds.  We may
\nquote Order XXXIV Rule 14 hereunder:\n<\/p>\n
“Suit for sale necessary for bringing
\nmortgaged property to sale  (1)  Where a
\nmortgage has obtained a decree for the
\npayment of money in satisfaction of a claim
\narising under the mortgage, he shall not be
\nentitled to bring the mortgaged property to
\nsale otherwise than by instituting a suit for
\nsale in enforcement of the mortgage, and he
\nmay institute such suit notwithstanding
\nanything contained in Order II Rule 2.\n<\/p>\n
2)\tNothing in sub-rule (1) shall apply
\nto any territories to which the Transfer of
\nProperty Act, 1882 (4 of 1882), has not
\nbeen extended.”\n<\/p>\n
11.\t\tIt is clear from sub-rule (1) of Rule 14 of Order
\nXXXIV of the Code that notwithstanding anything
\ncontained in Order II Rule 2 of the Code, a suit for sale in
\nenforcement of the mortgage can be filed by the plaintiff
\nBank and in fact that is the only remedy available to the
\nBank to enforce the mortgage since it would not be
\nentitled to bring the mortgaged property to sale without
\ninstituting such a suit.  Be it noted, that Rule 14 has been
\nenacted for the protection of the mortgagor.  In the context
\nof Rule 14 of Order 34 of the Code, it is difficult to uphold
\na plea based on Order II Rule 2.  If the appellant wanted to
\nshow that the causes of action were identical in the two
\nsuits, it was necessary for the appellant to have marked in
\nevidence the earlier plaint and make out that there was a
\nrelinquishment of a relief by the plaintiff, without the leave
\nof the court.  Even then, the effect of Rule 14 will remain
\nto be considered.\n<\/p>\n
12.\t\tThat apart, the cause of action for recovery of
\nmoney based on a medium term loan transaction
\nsimpliciter or in enforcement of the hypothecation of the
\nbus available in the present case, is a cause of action
\ndifferent from the cause of action arising out of an
\nequitable mortgage, though the ultimate relief that the
\nplaintiff Bank is entitled to is the recovery of the term loan
\nthat was granted to the appellant.  On the scope of Order
\nII Rule 2, the Privy Council in Payana Reena Saminatha
\n& Anr. Vs. Pana Lana Palaniappa [XLI Indian Appeals
\n142] has held that Order II Rule 2 is directed to securing
\nan exhaustion of the relief in respect of a cause of action
\nand not to the inclusion in one and the same action of
\ndifferent causes of action, even though they may arise
\nfrom the same transactions.  In Mohammad Khalil Khan
\n& Ors. Vs. Mahbub Ali Mian & ors. [A.I.R. 1949 Privy
\nCouncil 78 (75 Indian Appeals 121)], the Privy Council has
\nsummarised the principle thus:\n<\/p>\n
“The principles laid down in the cases thus
\nfar discussed may be thus summarised:\n<\/p>\n
(1)\tThe correct test in cases falling under
\nO.2, R.2, is “whether the claim in the new
\nsuit is in fact founded upon a cause of
\naction distinct from that which was the
\nfoundation for the former suit.”  Moonshee
\nBuzloor Ruheem V. Shumsunnissa Begum,
\n(1867-11 M.I.A. 551 : 2 Sar. 259 P.C.)
\n(supra)<\/p>\n
(2)\tThe cause of action means every fact
\nwhich will be necessary for the plaintiff to
\nprove if traversed in order to support his
\nright to the judgment.  Read V. Brown,
\n(1889-22 Q.B.D. 128 : 58 L.J.Q.B. 120)
\n(supra)<\/p>\n
(3)\tIf the evidence to support the two
\nclaims is different, then the causes of
\naction are also different.  Brundsden v.
\nHumphrey, (1884-14 Q.B.D. 141 : 53
\nL.J.Q.B. 476) (supra)<\/p>\n
(4)\tThe causes of action in the two suits
\nmay be considered to be the same if in
\nsubstance they are identical.  Brundsden v.
\nHumphrey, (1884-14 Q.B.D. 141 : 53
\nL.J.Q.B. 476) (supra)<\/p>\n
(5)\tThe causes of action has no relation
\nwhatever to the defence that may be set up
\nby the defendant nor does it depend upon
\nthe character of the relief prayed for by the
\nplaintiff.  It refers . to the media upon
\nwhich the plaintiff asks the Court to arrive
\nat a conclusion in his favour.  Muss.\n<\/p>\n
Chandkour v. Partab Singh, (15 I.A. 156 :
\n16 Cal. 98 P.C.) (supra).  This observation
\nwas made by Lord Watson in a case under
\nS. 43 of the Act of 1882 (corresponding to
\nO.2 R.2), where plaintiff made various
\nclaims in the same suit.”\n<\/p>\n
13.\t\tA Constitution Bench of this Court has
\nexplained the scope of the plea based on Order II Rule 2 of
\nthe Code in Gurbux Singh Vs. Bhooralal (supra).  It will
\nbe useful to quote from the Head note of that decision:
\n“Held: (i)  A plea under Order 2 rule 2 of the
\nCode based on the existence of a former
\npleading cannot be entertained when the
\npleading on which it rests has not been
\nproduced.  It is for this reason that a plea of
\na bar under O.2 r.2 of the Code can be
\nestablished only if the defendant files in
\nevidence the pleadings in the previous suit
\nand thereby proves to the court the identity
\nof the cause of action in the two suits.  In
\nother words a plea under O.2 r.2 of the
\nCode cannot be made out except on proof of
\nthe plaint in the previous suit the filing of
\nwhich is said to create the bar.  Without
\nplacing before the court the plaint in which
\nthose facts were alleged, the defendant
\ncannot invite the court to speculate or infer
\nby a process of deduction what those facts
\nmight be with reference to the reliefs which
\nwere then claimed.  On the facts of this
\ncase it has to be held that the plea of a bar
\nunder O.2 r.2 of the Code should not have
\nbeen entertained at all by the trial court
\nbecause the pleadings in civil suit No. 28 of
\n1950 were not filed by the appellant in
\nsupport of this plea.\n<\/p>\n
(ii) In order that a plea of a bar under O. 2.
\nr. 2(3) of the Code should succeed the
\ndefendant who raises the plea must make
\nout (i) that the second suit was in respect of
\nthe same cause of action as that on which
\nthe previous suit was based; (ii) that in
\nrespect of that cause of action the plaintiff
\nwas entitled to more than one relief (iii) that
\nbeing thus entitled to more than one relief
\nthe plaintiff, without leave obtained from
\nthe Court omitted to sue for the relief for
\nwhich the second suit had been filed.\n<\/p>\n
It is not necessary to multiply authorities except to notice
\nthat the decisions in Sidramappa Vs. Rajashetty & Ors.
\n[(1970) 3 S.C.R. 319], Deva Ram & Anr. Vs. Ishwar
\nChand & Anr. [(1995) Supp. 4 S.C.R. 369] and State of
\nMaharashtra & Anr. Vs. M\/s National Construction
\nCompany, Bombay and Anr. [(1996) 1 S.C.R. 293] have
\nreiterated and re-emphasized this principle.\n<\/p>\n
14.\t\tApplying the test so laid down, it is not possible
\nto come to the conclusion that the suit to enforce the
\nequitable mortgage is hit by Order II Rule 2 of the Code in
\nview of the earlier suit for recovery of the mid term loan,
\nespecially in the context of Order XXXIV Rule 14 of the
\nCode.  The two causes of action are different, though they
\nmight have been parts of the same transaction.  Even
\notherwise, Order XXXIV rule 14 read with rule 15 removes
\nthe bar if any that may be attracted by virtue of Order II
\nRule 2 of the Code.  The decision of the Rangoon High
\nCourt in Pyu Municipality Vs. U. Tun Nyein (AIR 1933
\nRangoon 158) relied on by learned counsel for the
\nappellant does not enable him to successfully canvass for
\nthe position that the present suit was barred by Order II
\nRule 2 of the Code, as the said decision itself has pointed
\nout the effect of Order XXXIV Rule 14 and in the light of
\nwhat we have stated above.\n<\/p>\n
15.\t\tThen the question is whether the appellant has
\nestablished that there was a tripartite arrangement come
\nto, by which the bus was made over by him to one
\nFernandes and Fernandes undertook to the Bank to
\ndischarge the liability under the mid term loan.  In
\nsupport of his case, the appellant had only produced
\nExhibits D1 to D4 which only indicate an attempt to bring
\nabout an arrangement of that nature.  But they do not
\nshow that there was any such concluded arrangement and
\nthere was a taking over of the liability by Fernandes as
\nagreed to by the Bank.  The fact that the Bank has paid
\nthe insurance premium for the bus in question, would not
\nadvance the case of the appellant since the Bank, as the
\nhypothecatee of the bus was entitled to and in fact, as a
\nprudent mortgagee, was bound to, protect the security
\nand the insurance of the vehicle effected in that behalf
\ncannot be taken as a circumstance in support of the plea
\nput forward by the appellant.  The trial court, after
\nconsidering the evidence, rightly noticed that the burden
\nwas on the appellant to show that he had handed over the
\npossession of the vehicle to one Fernandes on the
\nintervention of the Bank and on the basis of a tripartite
\narrangement or taking over of liability by Fernandes and
\nthat the liability of the appellant had come to an end
\nthereby.  Learned counsel for the Bank rightly submitted
\nthat no novation was proved so as to enable the appellant
\nto riggle out of the liability under the loan transaction.
\nThe High Court has not interfered with the reasoning and
\nconclusion of the trial court on this aspect and has in fact
\nproceeded to grant the plaintiff Bank a decree for the suit
\namount based on the equitable mortgage.  We were taken
\nthrough Exhibits D1 to D4 and even a fresh document
\nattempted to be marked in this Court along with its
\ncounter affidavit by the Bank.  On going through the said
\ndocuments, the other evidence and the reasoning adopted
\nby the trial court, we are satisfied that there is no evidence
\nto show that there was a tripartite agreement on the basis
\nof which the appellant could disclaim liability based on it.
\nIt is seen that the appellant has not even examined
\nFernandes in support of the plea of the tripartite
\narrangement and the taking over of the liability of the
\nappellant, by him.  In this situation, we see no reason to
\nuphold the plea of the appellant that the liability has been
\ntransferred to Fernandes at the instance of the Bank and
\nthat the appellant was no more liable for the plaint
\namount.\n<\/p>\n
16.\t\tThus, on a consideration of all the relevant
\naspects, we are satisfied that the High Court was correct
\nin granting the Bank a decree in the suit.  There is
\ntherefore no reason to interfere with that decree.  We
\ntherefore confirm the judgment and decree of the High
\nCourt and dismiss this appeal with costs.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India S. Nazeer Ahmed vs State Bank Of Mysore And Ors on 12 January, 2007 Author: P Balasubramanyan Bench: H.K. Sema, P.K. Balasubramanyan CASE NO.: Appeal (civil) 175 of 2007 PETITIONER: S. NAZEER AHMED RESPONDENT: STATE BANK OF MYSORE AND ORS DATE OF JUDGMENT: 12\/01\/2007 BENCH: H.K. SEMA & P.K. BALASUBRAMANYAN JUDGMENT: […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-19066","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nS. 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