: 1 : IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.3714 OF 2006 NOTICE OF MOTION NO.3714 OF 2006 NOTICE OF MOTION NO.3714 OF 2006 IN IN IN SUIT NO.1220 OF 2004 SUIT NO.1220 OF 2004 SUIT NO.1220 OF 2004 1. Ameera Rafiq Wahedna Age 67 years, Occu.Housewife, residing at Wahedna Apartments, Hill Road, Mumbai - 400 050. 2. Mohammed Yusuf Noorani Age 75 years, Occu.Business. 3. Annes Noorani Age 54 years, Occu.Business. 4. Salman Noorani Age 41 years, Occu.Business Plaintiff Nos.3 and 4 as executors of Razia Yusuf Noorani and in their personal capacity : 2 : Plaintiff Nos.2 to 4 residing at Belmont, L.Jagmohandas Marg, Mumbai - 400 026. 5. Zain F.Kably Age 50 years, Occu.Housewife, residing at 30th floor, Sagar Sangeet, Opposite Colaba Post Office, Coloba, Mumbai - 400 005. 6. Mohamed Obedulla Chinoy Age 72 years, Occu. Advocate, residing at 64, Citation Drive Toronto, Ontario M2K1S7, CANADA. 7. Taher Chinoy Age 66 years, Occu. Business, residing at Chinoy Mansion, 162, Warden Road, Mumbai - 400 036. 8. Shahjehan Chinoy : 3 : Age 62 years, Occu.Business, residing at 37, IL Block 6, PECHS, Karachi - 29, Pakistan .. Plaintiffs. Versus 1. Hasanali Hasambhoy Jetha Age 68 years, Occu. Business. 2A. Suraiya Akberally Jetha as sole executrix of the Will of Akberally Hashambhoy Jetha and in her personal capacity residing opposite Byculla Goods Depot., Dr.Ambedkar Road, Mumbai - 400 027. 3. Jetha Drums & Containers Pvt. Ltd. having their registered office opposite Byculla Goods Depot., Dr.Ambedkar Road, Mumbai - 400 027. .. Defendants. : 4 : Mr.R.C.Shah for the plaintiffs. Mr.Shekhar Naphade a/w. Ms.Usha Rahi i/b.Mayur Narendra & Co. for defendant Nos.1 and 3. Mr.V.Y.Sanglikar for defendant No.2. CORAM : R.Y. GANOO, J. CORAM : R.Y. GANOO, J. CORAM : R.Y. GANOO, J. DATE : 28th August, 2008. DATE : 28th August, 2008. DATE : 28th August, 2008. JUDGEMENT :- JUDGEMENT :- JUDGEMENT :- 1. The present suit is filed by the plaintiffs for accounts in regard to the suit property, more particularly, set out in Exhibit-"F" Exhibit-"F" Exhibit-"F" to the plaint as also for redemption of the mortgage dated 18.5.1938 (hereinafter referred to as the "suit mortgage"). 2. Original defendant No.2 has expired and in his place defendant No.2(A) is brought on record in her capacity as sole executrix of the will of Akberally Jetha and in her personal capacity. 3. Defendant Nos.1 and 3 have taken out this notice of motion and have prayed that the plaint be rejected in view of the provisions of Order VII Rule 11(a) and Order : 5 : VII Rule 11(d) of the Code of Civil Procedure. 4. As per the provisions of Order VII Rule 11(a), a plaint can be rejected if it does not disclose the cause of action. In terms of Order VII Rule 11(d), a plaint can be rejected if the suit appears from the statement made in the plaint to be barred by the law of limitation. The parties have completed the process of filing of affidavits. 5. Few facts necessary for the disposal of this notice of motion are as under :- 6. One Bayabai executed a mortgage on 18.5.1938 in favour of Chamnaji Punamchand Kasturbhai for Rs.17,000/-. Said Chamnaji by Deed of Assignment dated 14.3.1940 transferred his equity of redemption in favour of Usman Haji Mahomed Kadwani to which Bayabai was a confirming party. Said Usman Haji Mahomed Kadwani in turn by Deed of Assignment dated 16.6.1947 transferred equity of redemption for a consideration of Rs.21,050/- in favour of Hassambhoy Jetha and to this document also, Bayabai, the original mortgagor was a confirming party. Subsequently, by a Sale Deed dated 31.3.1970, successor in title of : 6 : Hasambhoy Jetha transferred his rights in regard to the property covered by mortgage dated 18.5.1938 (which is referred to as the "suit mortgage") to M/s.Jetha Drums & Containers Pvt. Ltd. for a consideration of Rs.4.00 lacs being one half undivided share. It is admitted by and between the parties that as of today, defendant Nos.2A and 3 are in possession of the property, more particularly, described in Schedule Exhibit-F. Exhibit-F. Exhibit-F. 7. The plaintiffs claim through the original mortgagor Bayabai and have filed this suit as mentioned earlier for diverse prayers and upon perusal of the prayer clauses, it is seen that the plaintiffs want that accounts be taken in regard to the transactions pertaining to the suit mortgage and if anything is due from the plaintiffs to the defendants or vice versa and the court should determine who is liable to pay whom and what amount. The plaintiffs have also set out prayers which in turn indicate that the suit is for redemption of the mortgage and such steps be taken towards the redemption of the mortgage. Defendant Nos.1 and 3 have contended by taking out the present notice of motion that the plaint does not disclose any cause of action and, therefore, the plaint is required to be rejected in terms of Order VII Rule 11(a) : 7 : of the C.P.C. It is also the stand of the defendants 1 and 3 that the suit is barred by the period of limitation and as such provisions of Order VII Rule 11(d) of the C.P.C. would be applicable and the word "law" "law" "law" appearing in the clause (d) would include the provisions of the Indian Limitation Act, 1963. 8. It is required to be mentioned that in order to decide as to when the right to redeem accrues to a mortgagor, one will have to go through the text of the document, namely, the mortgage deed. This is so because for a suit for redemption, the period of limitation is provided under Article 61(a) of the Indian Limitation Act, 1963 and the said period is for 30 years and the period of limitation is said to commence when right to redeem accrues. 9. With the assistance of the learned Advocates appearing on both the sides, I have perused the text of the suit mortgage deed. A reading of the said document would go to show that the mortgage money advanced under the said deed of mortgage was Rs.17,000/-. Elaborate clauses are set out in the deed as to when the interest would be payable and as to how the mortgagor was required : 8 : to comply with the terms of the payment. A further perusal of the deed of mortgage would go to show that the mortgage money alongwith the interest was to be paid on 19.1.1939. The document, thereafter, goes to indicate that the mortgagor would become the tenant of the mortgagee and the mortgagor will be required to discharge the duties as regards the payment of taxes and other liabilities. Further terms of the mortgage indicate that the mortgagee had a right to sale the property without the intervention of the court after complying with the requirements which are found in the deed of the mortgage, namely, notice to be given in writing to the mortgagor as set out in Section 69 Sub-section 2 of The Transfer of Property Act, 1982 and related provisions. Thus, the perusal of the deed of mortgage would go to show that the mortgage will have to be titled as an anomalous mortgage, keeping in view the provisions of Section 58 of The Transfer of Property Act, 1982. 10. Once, it is held that the suit mortgage dated 18.5.1938 was an anomalous mortgage, present plaintiffs as successors of Bayabai and defendant will also be bound by the terms of the suit mortgage deed. Provisions of Section 98 of The Transfer of Property Act, 1982 do : 9 : indicate as to what are the rights and liabilities of parties to anomalous mortgage. The relevant provision is as under :- "98. Rights and liabilities of parties to anomalous mortgagees - In the case of an anomalous mortgage the rights and liabilities of the parties shall be determined by their contract as evidenced in the mortgage-deed, and, so far as such contract does not extend, by local usage." 11. In the present case, neither party has advanced submissions to say that the provisions of Section 98 "sofar as such contract does not extend by local usage" would be pressed into service. Hence, what are the rights and liabilities of the mortgagor as well as the mortgagee can be governed by the text of the suit mortgage dated 18.5.1938. 12. Learned Advocate Mr.Naphade appearing on behalf of the defendants 1 and 3 had in support of his contention that the suit is barred by law of limitation had submitted that 19.1.1939 was the important date when Bayabai ought to have repaid the amount of mortgagemoney and since that was not done, neither Bayabai nor her successors have any right to seek redemption because the right of redemption is barred as the period of 30 years has elapsed from 19.1.1939 as per Article 61(a) of Limitation Act. Learned : 10 : Advocate Mr.Naphade had submitted that the explanation given by the plaintiffs in paragraph 26 cannot be treated as an explanation for extension of period of limitation as understood in accordance with the provisions of the Indian Limitation Act and that the stand of the plaintiffs that sale deed dated 31.3.1970 purported to have been executed by defendant No.1 in favour of defendant No.3 behind the back of the plaintiffs has no relevance and the plaintiffs and their predecessors in title ought to have kept track as to whom the monies were payable from time to time and they ought to have either paid monies at the relevant time or institute a suit for redemption of the mortgage within the time limit prescribed by the provisions of law. Mr.Naphade had submitted that the text of the mortgage deed is clear to show that the monies were to be paid on 19.1.1939. The defendants 1 and 3 gave emphasis on this date and that is how they have contended that the suit is barred by the period of limitation. 13. Learned Advocate Mr.Naphade appearing on behalf of defendant Nos.1 to 3 had submitted that the Bayabai failed to pay money on 19.1.1939. He further submitted that plaint discloses no cause of action and as such the plaint is liable to be rejected as per Clause (a) of Order VII : 11 : Rule 11 of the Code of Civil Procedure. According to the defendant Nos.1 and 3, there is no question of taking of accounts because plaintiffs or their predecessors in title did not pay the monies as and when they were due and hence there is no question of plaintiffs asking for accounts and for redemption of mortgage. 14. Learned Advocate Mr.Sanglikar had supported the stand of defendant Nos.1 and 3. In the course of arguments, learned Advocate Mr.Sanglikar appearing on behalf of the defendant No.2A had relied upon the following judgements to point out as to how the enquiry could be conducted by the court when it is contended by the defendants that the plaint should be rejected on the ground of absence of cause of action and the suit being barred by the period of limitation. i) Hardesh Ores Pvt. Ltd. v/s. M/s.Hede & i) Hardesh Ores Pvt. Ltd. v/s. M/s.Hede & i) Hardesh Ores Pvt. Ltd. v/s. M/s.Hede & Co. 2007(4) AIR Bom.R.420. Co. 2007(4) AIR Bom.R.420. Co. 2007(4) AIR Bom.R.420. ii) Liverpool & London S.P.& I. Association ii) Liverpool & London S.P.& I. Association ii) Liverpool & London S.P.& I. Association Ltd. v/s. M.V.Sea Success I and another (2004) 9 Ltd. v/s. M.V.Sea Success I and another (2004) 9 Ltd. v/s. M.V.Sea Success I and another (2004) 9 S.C.C. 512. S.C.C. 512. S.C.C. 512. : 12 : iii) N.V.Srinivasa Murthy & others v/s. iii) N.V.Srinivasa Murthy & others v/s. iii) N.V.Srinivasa Murthy & others v/s. Mariyamma (Dead) by proposed LRs & Others (2005) 5 Mariyamma (Dead) by proposed LRs & Others (2005) 5 Mariyamma (Dead) by proposed LRs & Others (2005) 5 S.C.C. 548. S.C.C. 548. S.C.C. 548. 15. The judgement in the case of Hardesh Ores Pvt. Hardesh Ores Pvt. Hardesh Ores Pvt. Ltd. v/s. M/s.Hede & Co. 2007(4) AIR Bom.R.420 Ltd. v/s. M/s.Hede & Co. 2007(4) AIR Bom.R.420 Ltd. v/s. M/s.Hede & Co. 2007(4) AIR Bom.R.420 was relied upon to contend that for the purposes of deciding whether a cause of action is made out or not, one will have to refer to the contents of the plaint and on perusal of the text of the plaint, the court will have to decide whether plaint discloses cause of action. 16. The judgement in the case of Hardesh Ores Pvt. Hardesh Ores Pvt. Hardesh Ores Pvt. Ltd. (supra) Ltd. (supra) Ltd. (supra) was relied upon to say that clause 11(d) of Order VII of the C.P.C. must include the law of limitation as well. The judgement in the case of Liverpool & London S.P.& I. Association Ltd. (supra) Liverpool & London S.P.& I. Association Ltd. (supra) Liverpool & London S.P.& I. Association Ltd. (supra) was cited to contend that when no cause of action is disclosed, the courts will not unnecessarily protract the hearing of suit. 17. Learned Advocate Mr.Sanglikar had drawn my attention to the provisions of Section 3 of the Transfer of Property Act regarding the term "constructive notice" : 13 : and had submitted that the very fact that the sale deed of 1970 was a registered document, there is no question of the plaintiffs contending that they were in dark about the transactions between defendants 1 and 3. 18. Learned Advocate Mr.R.C.Shah appearing on behalf of the plaintiffs had submitted that it may be true that the mortgage money of Rs.17,000/- plus interest was due and payable on 19.1.1939 but that was at the first instance and there are enough provisions in the suit mortgage as to what shall happen if the monies are not paid on 19.1.1939 that is to say the mortgagor soon thereafter was to act as the tenant of the mortgagee and a power was given to the mortgagor to sell the property without the intervention of the court and attend to the matter. It was contended by the learned Advocate Mr.Shah by taking recourse to the averments in paragraph 25 of the plaint that on the date of the filing of the suit in the year 2004, the right to redeem survived in favour of the plaintiffs because defendant No.1 original defendant No.2 had not taken steps to foreclose the mortgage till 31.3.1970 or to recover the mortgage money by exercising power to sell the property. He also submitted that after 1970, defendant No.3 as well as original defendant No.2 to : 14 : whom rights were transferred in regard to the suit property at Exhibit-F did not take steps to foreclose the mortgage or have the property sold without the intervention of the court and, therefore, even on the date of the filing of the suit, the right to redeem survived in favour of the plaintiffs. Learned Advocate Mr.Shah had taken me through the text of the suit mortgage and has submitted that as a result of elaborate provisions mentioned in the suit mortgage as regards payment of taxes and other dues by the mortgagor, it was necessary for both the parties to take accounts and ascertain who is liable to pay to whom and what amount. According to Mr.Shah so long as the accounts are not finally drawn by the parties to the deed of mortgage, the mortgagor had a right to institute a suit for accounts and that is what has been precisely done by the plaintiffs because the present plaintiffs wanted to know as to what amount is due and payable by the plaintiffs to the defendants. Mr.Shah had, therefore, submitted that on the date of filing of the suit, the plaintiffs had a cause of action as disclosed in the plaint. He submitted that the suit instituted in the year 2004 was well within the period of limitation. Learned Advocate Mr.Shah had, therefore, submitted that the notice of motion be disposed of. : 15 : 19. Learned Advocate Mr.Shah had submitted that averments set out in paragraph 26 in detail indicate as to how the fraud was practised upon Bayabai and as to how Bayabai was prevented from and knowing real nature of transactions which were entered into from time to time. Mr.Shah had also pointed out that after the main mortgage was entered into, for the 2 deeds of assignments, Bayabai was made to join as a confirming party and that is also a factor which would go to show that assignors of the 2 deeds of assignments and the 2 assignees were fully aware of the fact that the date 19.1.1939 had already elapsed and that perusal of the 2 deeds of assignments clearly indicate that the right of redemption which was held by the mortgagor was not taken away by act of the parties or by the order of the court. Mr.Shah had also pointed out that the sale deed dated 31.3.1970 makes no reference to the deed of main mortgage or the rights of the parties to the said sale deed and the sale deed merely provided to convey the rights held by defendant No.1 that too also one half undivided share. Mr.Shah had, therefore, submitted that taking an overall view of the matter, defendants 1 and 3 have not been able to make out a case for grant of notice of motion. : 16 : 20. I have considered the rival contentions. The deed of mortgage, namely, 18.5.1938 i.e. suit mortgage came to be executed. Perusal of the same would go to show that it would be an anomalous mortgage. Two deeds of assignments were executed and the last one being 16.6.1947 to which Bayabai was a confirming party. This will mean that the mortgage was not repaid till 16.6.1947 and, therefore, there is nothing specifically stated in the deed dated 16.6.1947 prohibiting Bayabai’s right to redeem the mortgage in terms of Section 98 of The Transfer of Property Act. The suit mortgage deed being an anomalous mortgage, the rights and liabilities would be determined by the text of the mortgage. A very peculiar provision is incorporated in the mortgage deed so as to style a mortgagor as a tenant and certain rights and duties are conferred upon the mortgagor as regards the payment of monies and taxes etc. The mortgagee is also authorised to sell the property without the intervention of the court. With this, if one looks to the conduct of defendant No.1 as well as original defendant No.2 when the sale deed dated 31.3.1970 was executed, no steps were taken by the defendant No.1 as well as original defendant No.2 who had rights in respect of the suit property at Exhibit-F either : 17 : to recover mortgage money or to prohibit the mortgagor from redeeming the property and no steps were taken to render accounts of the mortgagor for the purposes of saying that the mortgagor do pay the monies to the mortgagor. Looking to the terms of the suit mortgage and noting the various events which have taken place after 18.5.1938, it is abundantly clear that the right of redemption of the mortgagor was not taken away. The mortgagee or defendant No.1 and 2 did not render accounts to the mortgagor or his successor in title. As such, the right of the present plaintiffs in their capacity as mortgagor to redeem the mortgage was existing on the date of the filing of the suit and the cause of action accrued on a day to day basis. 21. The argument advanced by the learned Advocate Mr.Naphade that the period of limitation would start from 19.1.1939 cannot be accepted keeping in view the terms of the mortgage and duties and rights of the respective parties to the deed of mortgage. If it was the intention of the parties that 19.1.1939 is the date on which the monies were to be paid, what was the purpose in incorporating the various clauses which made the mortgage as anomalous. As such, the court cannot ignore the : 18 : subsequent clauses after the clause which specifies 19.1.1939 as the date on which the mortgage money was to be paid. In substance, the argument advanced by the learned Advocate Mr.Shah that even in the year 2004 when the suit came to be filed, the mortgage money was due and payable is required to be accepted and, therefore, the institution of the suit was within the period of limitation. As per the terms of the mortgage, the parties were to settle the accounts. It is also pertinent to note that the plaintiffs have not filed this suit simplicitor for redemption of the mortgage but for the accounts for which the details are set out in the plaint. 22. In view of the judgement delivered by the Supreme Court in the case of Hardesh Ores Pvt. Ltd. (supra), Hardesh Ores Pvt. Ltd. (supra), Hardesh Ores Pvt. Ltd. (supra), it is clear that whether a cause of action is made out by the plaintiffs can be decided on the basis of the text of the plaint. In order to find out whether a cause of action is made out by the plaintiffs in the suit in detail, the court will have to peruse the text of the plaint and the documents annexed to the plaint on which, the plaintiffs want to rely upon. In the present case, I am inclined to observe that the plaintiffs have set out facts, which go to show that till the filing of the suit, the plaintiffs : 19 : were interested in settling the accounts and pay the mortgage money. The very prayer for redemption of the mortgage would go to show that the plaintiffs intend to fix the quantum of the mortgagemoney and relieve themselves from the terms of the mortgage. 23. In my view, paragraphs 1 to 25 of plaint clearly set out the facts which constitute the cause of action and the reasons as to why the plaintiffs were required to come to the court. 24. Paragraph 26 of the plaint is set out by the plaintiffs to plead what may be referred to as the additional averments to explain as to how the suit was not filed soon after the transaction of 1970 was noticed by them. It is already observed that the cause of action for the accounts between the parties and for redemption of the mortgage accrued to the present plaintiffs on day-to-day basis, there was no need for the plaintiffs to explain the reasons for not filing the suit prior to 2004. It is on this background, the argument of learned Advocate Mr.Sanglikar based on term "constructive notice" appearing in Section 3 of Transfer of Property Act will not be relevant. : 20 : 25. In my view, for the purposes of arriving at the conclusion as to whether a cause of action is made out or not, the conduct of the parties manifested in the plaint is required to be seen and on seeing that, I am inclined to observe that the plaintiffs have stated necessary averments in the plaint to show as to how parties were acting in regard to the mortgage deed and if that is seen, the plaintiffs had a cause of action to file suit for redemption of the mortgage and for accounts on the date of filing of the suit i.e. on 20.3.2004. 26. At this stage of the judgement, learned Advocate Ms.Usha Rahi for defendant Nos.1 and 3 had by taking me through the provisions of Section 27 of the Indian Limitation Act contended that the equity of redemption shall not survive once the period