P L D 1962 (W (PLP)

Documents marked `C' Copy of a Memorandum of deposit of title deeds, without date, together with a schedule of documents.

4. Documents marked 'D' Copy of a Memorandum of deposit of title deeds, without date, together with a schedule of documents.

5. Documents marked `E' Copy of a Memorandum of deposit of title deeds, with us date, together with a schedule of documents.

6. Documents marked `F' Copy of general irrevocable power, of‑attorney dated 10‑9‑5 7, which is a registered document and confers on the plaintiff vast powers as attorney of defendant No. 1.

7. Documents marked 'G' Copy of a General irrevocable power‑of‑attorney dated 10th of September 1957, which is a registered document and confers vast powers on the plaintiff as attorney of the defendant No. 2.

8. Documents marked `H' Copy of a no‑encumbrance certificate, without date, from the Sub‑Registrar, Karachi in respect of Naz Chambers.

9. Documents marked `J' Copy of no‑encumbrance certi ficate, without date, from the Sub‑Registrar, Karachi in respect of Plinth No. 16‑A in Thole Produce Yard. The above facts raise the question whether the money claimed by the plaintiff in this suit with reference to the three promissory notes mentioned in the plaint is an old debt, or was advanced when these promissory notes were executed. An explanation of the situation can be found in the statement of defendant No. 3, Muhammad Shafiq In Suit No. 83 of 1959, read with the letter written by the plaintiff dated the 5th of June 1958, (with a copy to Muhammad Shafiq, Exh. 6, in Suit No. 83 of 5959). I set out, below the facts which constitute the explanation.

11. The plaintiff had agreed to advance and apparently did advance Rs. 2,50,000 on the security created by deposit of title deeds. A few promissory notes were also taken as collateral security for the debt. Out of this debt, Rs. 55,000 were paid and Rs. 1,95,000 remained unpaid. The plaintiff demand the payment of the outstanding amount and stated in its letter, Exh. 6, as follows: "Please be advised that if outstanding bills are not paid on due dates, the bark shall be compelled to protest non‑payment of the bills and to proceed for the attachment of the properties mortgaged by you." To obviate the threat of legal proceedings some more money was perhaps paid and the three promissory notes mentioned in the plaint for Rs. 1,35,000 were executed to renew the outstanding part of the old debt. The equitable mortgages created by the deposit of the documents marked `A' to 'J' were taken to be subsisting. The mortgages are being pressed by tire plaintiff into use now by this suit [i.e., Suit No. 206 of 1959 (O. S.)), after two suits were instituted on the basis of three promissory notes.

12. Against this background, I proceed to decide the issues. Issues Nos. 1 and 4 can be considered together, because both of them raise the question of the effect of Order II, Rule

2. C. P. C. The first consideration for purposes of Order II, Rule 2, C. P. C., is whether the equitable mortgages created before the execution of the three promissory notes to which the suit relates constitute security for the debt secured by these three promissory notes also or not. If those mortgages are not the security for this debt, then they are useless for this suit which has been instituted with reference to these three promissory notes, but if they do constitute the security of this debt also, then the effect of Order II, rule 2, C. P. C. will have to be considered.

13. To decide as to which of the above‑mentioned two alternatives is correct, I have to examine the documents by which the mortgages were created. The agreements marked 'A' and 'B' do not relate to these promissory notes because they are dated the 10th of September 1957, and avowedly relate to those loans and advances for which the defendants had already requested This is clear from Paragraph 5 of the recitals of both the docu ments. The memoranda of deposit of title deeds, marked 'C', 'D' and 'E', have no dates. They are accompanied with schedules of documents but the documents themselves have not been produced, nor are there any descriptions, in the memoranda or in the schedules, of the properties to which they relate; therefore, it is not possible to say whether the properties which are said in the plaint to have been mortgaged (that is, Naz Chambers and Plinth No. 16‑A of the Thole Produce Yard) were actually mortgaged. But it was not denied at the time of framing the issues in this suit [i.e., Suit No. 206 of 1959 (O. S.)], that these properties were not mortgaged and there is no issue relating to this question: therefore, I presume that they were mortgaged. If they were mortgaged, then the mortgages can also be said to be subsisting because the memoranda contain a statement that the equitable mortgages were created "for purposes of securing the payment to the Bank on demand of all the loans and advances made or which may hereafter be made." They should thus be taken to constitute the security for the debt secured by these three promissory notes.

14. I have, `therefore, to consider the effect of Order II, rule 2, C. P. C., on this suit (Suit No. 206 of 1959‑

0. S.) for enforcing the mortgages after the institution of two suits (No. 76 of 1959 and 83 of 1959). Order II, rule 2, C. P. C., is as follows: "R. 2.‑(1) Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court. (2) Where a plaintiff omits to sue in respect of, or inten tionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relin quished. (3) A person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs, but if he omits, except with the leave of the Court, to sue for all such reliefs, he shall not afterwards sue for any reliefs so omitted. Explanation.‑For the purposes of this rule an obligation and a collateral security for its performance and successive claims arising under the same obligation shall be deemed respectively to constitute but one cause of action." In view of this provision can it be said that the plaintiff has omitted to sue in respect of or intentionally relinquished his claim that was available to it on the basis of the mortgages? Mr. Nurul Arifin has advanced the following arguments to get rid of the adverse effect of this provision; (1) This is a suit under Order XXXIV, rule 14, C. P. C., which itself negatives the effect of Order II, Rule 2, C. P. C. In support of this proposition he has relied on Puran Chand v. Har Parshad A I R 1935 Lah. 672 (F B). (2) This is a plaint in support of an originating summons and, therefore, in terms of Rule 244 of the Sind Chief Court Rules (O. S.) Order II, rule 2, C. P. C. is not applicable. (3) As the claim in Suit No. 83 of 1959 is a claim for the recovery of mortgage money it falls under subsection (2) of section 68 of the Transfer of Property Act; therefore, it should be stayed "until the mortgagee has exhausted all his available remedies against the mortgaged property" after obtaining a decree in Suit No. 206 of 1959 (O. S.). For this proposition he has relied on Nityananda Ghose v. Rajpur Chhya Bani Cinema Limited A I R 1953 Cal. 208. (4) As there are promissory notes also, the enforcement of the mortgage is in the nature of an alternative relief or a relief based on a distinct and an independent cause of action; therefore, the two suits for the reliefs based on the promissory notes did not bar another suit in terms of Order II, rule 2, C. P. C. for obtaining relief on the basis of the mortgages. In support of this proposi tion he has relied on Beni. Ram v. Ram Chandra A I R 1914 All. 494 ; M. Natesa Mooppan v. K. R. Ramchandra Iyer A I R 1915 Mad. 688 ; Mundar BIN v. Baijnath Prasad A I R 1920 All. 340 ; Parmeshri Das v. Fakeria A I R 1920 Lah. 1, F B ; Rajagopala‑Chariar v. Thiagaraya Mudali A I R 1925 Mad. 991 ; Ma Kyi v. P. R‑M. A. C. T. V. R. Chettyar A I R 1935 Rang. 365; Mt. Har Kaur v. Udham Singh A I R 1939 Lah. 112; Brijkishore Singh v. Sm. Nazuk Bai A I R 1948 Cal. 19 and Shripad Gopalkrishna Chandavarkar v. Sidram Satappa Dodamani A I R 1951 Bom. 167.

15. The first argument is not sound because Order XXXIV, Rule 14, C. P. C. Is not applicable to the facts of this case. That provision is applicable only when the plaintiff first obtains a decree "for the payment of money in satisfaction of a claim arising under the mortgage." See: Umeshwar Prasad Sinha v. Dwarika Prasad (A I R 1944 Pat. 5); Mehar Bakhsh v. Sanjhe Khan (A I R 1916 Lah. 196) and Durga Prasad v. Mt. Tulsa Kuar (A I R 1939 All. 579). Admittedly Suit No: 76 of 1959 was not and Suit ho. 206 of 1959 (O. S.) is not for the recovery of money in satisfaction of a claim under the mortgages. Both of them are based on promissory notes. Puran Chand v. Har Parshad (A I R 1935 Lah. 672 (F B)) does not help the plaintiff because it relates to the effect of the covenants that were contained in a mortgage deed. I may further point out that the plaintiff has claimed a decree under Order XXXIV, Rule 4, C. P. C. In form No. 5‑A of Appendix `D' to the First Schedule to the Code and not a decree under order XXXIV, Rule 14, C. P. C. Under the latter provision a plaint should be for the recovery of the decretal amount of a previous suit by selling mortgaged property and a decree should be only for the recovery of unrealised decretal amount of the previous suit from the mortgaged property.

16. The second argument based on Rule 244 of the Chief Court of Sind Rules (O. S.) is erroneous. Rules 243 and 244 of those rules should be read together. They are as follows:-- "243.‑When any summons under rules 222 and 223 has been taken out, every subsequent summons relating to the same estate or trust shall, so far as possible, be heard by the Judge who heard the original summons. 244.‑Nothing in Order II, Rule 2 of the Code, shall apply to plaints filed to support an originating summons or to any proceedings thereunder." It becomes clear by reading them together that several plaints can be filed to support an originating summons or any proceedings thereunder and that several summons may be taken out relating to the same estate or trust: It is not correct to argue on the basis of Rule 244 that Order II, Rule 2, C. P. C. does not apply to a case in. which the plaintiff at the time of finding a regular suit has omitted to sue in respect of or intentionally relinquished a portion of his claim.

17. The third argument is defective because Suit No. 76 of 1959 has already been decreed and cannot be stayed. Suit No. 83 of 1959 is not a claim for the recovery of mortgage money. The E latter suit (Suit No. 83 of 1959) therefore does not fall under sub-section (2) of section 68 of the Transfer of Property Act. This is clear from the reasoning in Nityananda Ghose v. Rajpur Chhaya Bani Cinema Ltd. Itself.

18. The fourth argument needs more detailed examination. The facts stated above reveal that a debt of Rs. 2,50,000 was secured by three mortgages and a few promissory notes. After payment of a part of the debt, the outstanding debt was renewed by three promissory notes and secured by the three equitable mortgages. It is true that each promissory note is by itself an independent cause of action, as pointed out in Beni Ram v. Ram Chandra and Ma Kyi v. P. R. M. A. C. T. V. R. Chettyar Firm. It is, therefore, correct that a creditor who has secured his debt by a promissory note as well as a mortgage can bring a suit on the basis of the promissory note alone without enforcing the mortgage and then can sue to enforce the mortagee rights alone if the first suit has failed, or the personal decree granted in the first suit is not sufficient for his purpose and a supplementary remedy is available to him in virtue of the mortgage, provided the two documents do not constitute a single transaction. No case has been brought to my notice in which a creditor has been allowed to obtain decrees to recover his debt twice over merely because he has taken two independent documents which may technically constitute two separate causes of action; though supplementary remedies have been held sometimes to be not barred by Order II, Rule 2, C. P. C. even when a second suit is filed on the basis of an independent or alternative covenant contained in the same documents on the basis of which the first suit was instituted : see for instance Parmeshri Das v. Fakeria and Shripad v. Sidram.

19. The question as to what are the circumstances in which two documents may constitute one transaction is not discussed in any of the judgments to which reference has been made by counsel for the plaintiff. In the case before me the equitable mortgages were perhaps created in 1957 and the promissory notes were executed in 1958. Counsel, therefore, argued that the mortgages and the promissory notes constituted separate, alternative, distinct or independent causes of action ; as such, the plaintiff's claims in this suit, Suit No. 206 of 1959 (O. S.), which is based on the mortgages should not be considered to have been barred by Order II, rule 2, C. P. C. by reason of the institution of the two previous Suits (Nos. 76 and 83 of 1959) which were based on the promissory notes only. There is, however, one more obstacle in the way of the plaintiff which is that in the memoranda of deposit of title deeds there is no mention of any debt which is secured by the equitable mortgages. They purport to create floating securities meant to be useful for any debt that may be outstanding at the time of enforcing them. The debt is to be proved Indepen dently of the mortgages if advantage is to be taken of these floating charges. This is the reason why the plaintiff had to mention in this Suit (No. 206 of 1959 O. S.) the existence of the debt promised to be paid in the three promissory notes. If the promissory notes were not mentioned, the plaintiff could not support his claim for Rs. 1,37,621‑3‑6 made in this suit on the basis of the floating securities alone. This means that the floating securities created by deposit of title deeds in 1957 remained floating and settled down on the debt promised to be paid in the three promissory notes. It is not possible to enforce these mortgages without attaching them to the promissory notes. In other words, the causes of action based on the mortgages which are floating securities, are not separate and distinct from, or alternative to, or independent of the causes of action based on the promissory notes. A floating charge by its very nature is incomplete and unenforceable unless it is attached to a specific claim.

20. This view is not inconsistent with the view that a pro missory note creates an independent and distinct cause of action by itself ; because a claim based on it can be enforced by itself, but different considerations apply when advantage of a floating security is sought to be taken with its help. For the purpose of enforcing a floating charge to recover a debt payable on a promissory note, the promissory note is a part of the same cause of action. Thus a creditor who holds a promissory note and has secured the same debt by a floating charge can sue on the promissory note alone but he could not sue to enforce the charge independently of the promissory note.

21. In this view, Suit No. 206 of 1959‑O. S. is not a suit on the basis of the mortgages alone but is based on a cause of action which is a continuation of the promissory notes and the mortgages. The omission of the plaintiff to recognise this necessary connection between the promissory notes and the mortgages has resulted in the institution of three suits which, taken together, amount to a claim for double the amount of the debt and interest which was claimable by it. Where many documents are taken from a debtor and an occasion arises to burry up recovery, there is a temptation to the creditor to attack the debtor from many sides without the time to pause and think what is the most efficacious course of action. The mistake may, therefore, be excusable but a recogni tion of this connection between the two securities clearly shows that the ‑third suit, that is, Suit No. 206 of 1959 (O. S.), which alone might have been adequate, is barred by Order II, Rule 2, C. P. C. Issue No. 1, and Issue No. 4 9n respect of Order II, rule 2, C. P. C. only are therefore decided against the plaintiff.

22. It is unnecessary to decide the other part of issue No. 4 and other issues in this suit.

23. The conclusion is that Suit No. 83 of 1959 is decreed with costs as prayed, and Suit No. 206 of 1959 (O. S.) is dismissed with no order as to costs. K. B. A. Order accordingly,