P L D 1964 Dacca 36 (PLP)

7. It has been candidly admitted, as already pointed out, by Mr. Guha, the learned Advocate for the appellant, that if it is held that the suit is on the basis of the mutual, open and current account, then in that case his suit is barred by limitation. Our above finding that the suit is on the mutual, open and current account, is itself sufficient to dispose of the appeal but as Mr. Guha has advanced some arguments on the question of limitation of the mortgage, we propose to deal with the same.

8. Mr. Guha, the learned Advocate for the appellant, has contended that limitation begins to run only from the date when the money becomes due in view of the provisions of Article 132 of the Limitation Act and for this purpose he has relied on the case of Lasa Bin v. Mr. Gulab Kumar and others (AIR 1932 PC 207), which corresponds to L. R. 59 I. A.

376. In the aforesaid case there was a mortgage by which it was stipulated that would be payable after a few years, that interest was payable each year and in default of the payment of interest in arty year, the mortgagee would be entitled to realise the principal as well as the interest. In the "state of aforesaid facts" it was held by their Lordships of the Judicial Committee that in default of payment of interest by the mortgagor to the mortgagee the mortgagee would by able to realise the same amount as the stipulation was for the benefit of the mort gagee and that it was open to the mortgagee to realise interest and the principal if the mortgagee so desired. It was further held that by that stipulation the mortgagor was not entitled to redeem the mortgage before the expiry of the period mentioned in the deed "and the money did not become due before the expiry of the stipulated period. Now we are to see whether this case is of any help to Mr. Guha's claim. Relying on the ,tijjulation "the Bank will be entitled to demand the debt or, account of my said current account at any time it likes and I am liable to repay the same according to the demand of the Bank," in the mortgage bond Exh.

14. Mr. Guha content's that this clause in the mortgage deed brings the case within the purview of the aforesaid decision of the Judicial Committee. We are afraid we cannot give any countenance to this proposition. By this stipulation the mortgagor has been debarred from redeeming the mortgage debt before any demand by the mortgagee. It is only a mere stipulation enabling that mortgagee to demand which is always available to any mortgagee in the absence of any such stipulation because on there execution of a mortgage for a debt, a mortgagor becomes liable from that date generally, if not other wise stipulated and the mortgagee can sue after the execution of the mortgage deed and the mortgagor can redeem the mortgage after the execution of the mortgage deed. I3ence this stipulation in the mortgage deed does not bring this case within the purview of the decision of the Judicial Committee in the case mentioned above.

9. In this connection, Mr. Guha has further contended relying on case of Anilkanth Balwant Natu and others v. Vidva Narasingh Rharati and others (57 I A 194), that in the present case in the mortgage deed as there was no specific tune fixed for the payment of the debt, the money ,lied no: become due and the cause of action did not arise until demand for the payment of the mortgage debt was made by the mortgagee and it was refused by the mortgagor. For this contention Mr. Guha has relied on the stipulations in the mortgage deed Exh. 14 is mentioned above. In the case reported in 57 I A 194 there was a usufructuary mortgage created by the mortgagor in favour of the mortgagee between 1840 and 1844 and from 1859 or 1860, the mortgagee had allowed the mortgagor to collect rents and profits in the properties and in 1910 the mortgagee steed claiming payment of the same due or in default a sale of all the properties mortgaged. In such circumstances it was held by the Judicial Committee in that case as follows "In the second place there was no specific time fixed for the payment of the debt, and their Lordships are of opinion on the facts of this case that the money did not become due and the cause of action did not arise until demand for the payment of the mortgage debt was made by the mortgagee and it was refused by the mortgagor." Mr. Guha, the learned Advocate for the appellant, has not been able to show that this case has been followed in any subsequent case but from the case reported in A I R 1932 P C 207 we find that in view of the provisions in Article 132 of the Limitation Act the mortgagor can be sued for the money when the same becomes due and the money becomes due when both the mortgagor and the mortgagee can sue for redemption and for realisa tion of the money respectively. We have further stated before that mortgage money becomes due the moment a mortgage debt is incurred and a deed is executed, unless otherwise stipulated. There might be stipulation in the mortgage deed that money would be payable, say after 4 years after the date of the execution, and in such cases before the expiry of the period the money does not become due and the limitation will not run under Article 132 of the Limitation Act before the expiry of 4 years. In Exh. 14 there is no stipulation that the money will be due after certain years from the date of the execution of the document but all that has been provided for is that the mortgagee will be entitled to demand the debt on account of the current account at any time he likes. This document has not debarred the mortgagor to redeem his mortgage nor is it stipulated that the mortgagee will not be entitled to realise before the expiry of certain period. This sort of stipulation does not in any way debar either the mortgagor or the mortgagee to take recourse to his right in accordance with law. Hence we find that the case reported in 57 1 A 194 has no bearing to the facts and circumstances of the present case.

10. Mr. Guha has also relied on the case of Durga Prasad Chamarta v. Mario Calatun and others (A I R 1955 Cal. 194), where it was held that mortgage money does not become due until both the mort gagor's right to redeem and the mortgagee's right to secure money accrue. This decision is in line with the decision given by their Lordships of the Judicial Committee in the case reported in A I R 1932 P C 207 referred to above. Mr. Guha does not rely on this point but he relies on the following observation " . Where there is an agreement that title deeds deposited would cover advances already made and to be made there is one mortgage covering all the advances and the limitation would run from the date of the last advance made should be accepted as correct." In the aforesaid case the mortgage was by deposit of title deeds but in the present case a mortgage deed has been executed by the defendant in favour of the plaintiff. So the aforesaid observation does not at all apply to a mortgage created by a registered deed. From this decision we find that the last advance was made within 12 years and the suit was decreed for that amount only. No reason has been given in this decision why 12 years' limitation will apply. In a mutual, open and current account three years' limitation will apply and run from the last advance but curiously enough 12 years' limitation has been applied in that case. In our opinion the moment a mortgage deed is executed, both the mortgagor and the mortgagee have the right to redeem and sue for realisation respectively unless otherwise stipulated. Sub sequent advances of money on the same mortgage will not give fresh start of limitation once the limitation started to run. As there is no stipulation otherwise, the money on the mortgage in the present case became due just after the execution of the mortgage deed on the 15th July 1944 and the suit having been instituted on the 26th June 1957, which being beyond 12 years, the suit is barred by limitation, even assuming that the present suit is based on the mortgage deed.

11. Mr. Guha has further contended that in view of Exh. 16 series wherein the defendant No. 1 has acknowledged the existence of debt due from defendant No. 1 to the plaintiff, the last one being dated the 23rd September 1949, and the suit having been instituted on the 26th June 1957, the suit is not barred by limita tion. Sections 19 and 20 of the Limitation Act speak of the acknowledgment in writing and payment of interest as such or of part payment of principal. Section 19 provides that before the expiration of the period prescribed for a suit, an acknowledg ment of liability in respect of such property or right must be made in writing signed by the parties against whom such property or right is claimed or by some person through whom he derives title or liability. Section 20 provides that where interest on a debt, is, before the expiration of the prescribed period, paid as such by the person liable to pay the debt, or his agent duly authorised in this behalf, or where part of the principal of a debt, is, before the expiration of the prescribed period, paid by the debtor or by his agent duly authorised in this behalf, a fresh period of limitation shall be computed from the time when the payment was made. Exh. 16 series are nothing but some state ments of account sent by the plaintiff informing the defendant what was the balance of the account on such dates and defendant No. 1 confirmed the balance by those letters. These confirma tions by defendant No. 1 are not acknowledgments of debt or part B payment of principal or interest as stipulated by sections 19 and 20 of the Limitation Act and as such they do not give a fresh start of limitation.

12. We accordingly find that the suit is barred by limitation, even assuming that the suit has been instituted on the mortgage Exh. 14 dated the 15th July 1944.

13. As regards the question of maintainability of the suit, we do not propose to express our views on this point as in our view our decision on the first point is sufficient to dispose of the appeal.

14. Then remains the cross‑objection. In this cross- objection, defendant No. 1 has challenged the correctness of the finding of the learned Subordinate Judge to the effect that the loan was taken for commercial purpose. Mr. Khondkar, the learned Advocate for the cross‑objector, has taken us through the evidence adduced by the parties. P. W. 1 had stated that the loan was advanced for the commercial purpose which is corrobor ated by the statement made by defendants Nos. 1 and 2 in several documents executed by them and handed over to the plaintiff. We do not find any reason to disbelieve the evidence of P. W.

1. As regards the evidence adduced by the defendants, the learned Subordinate Judge has given cogent reasons for dis believing their evidence. For the reasons stated in the judgment of the learned Subordinate Judge, we also reject the evidence coming from the side of the defendants to prove that the loan was advanced for the purpose of commercial transaction. In the result, both the appeal and the cross‑objection are dismissed without any order as to costs and the judgment and decree of the trial Court are affirmed. SIDDIKY, J.‑I AGREE. S. B./K. B. A. Appeal dismissed.