THE HON'BLE MR JUSTICE G.CHANDRAIAH CIVIL REVISION PETITION No.1275 of 2011 Date:21.4.2011 Between: Balmoori Uma Devi ……….Petitioner/defendant. And Smt. M. Vimala Devi ……….Respondent/plaintiff. THE HON'BLE MR JUSTICE G.CHANDRAIAH CIVIL REVISION PETITION No.1275 of 2011 ORDER: The Civil Revision Petition is filed aggrieved by the order dated 28.2.2011 passed in I.A.No.926 of 2010 in O.S.No.29 of 2005 on the file of the Senior Civil Judge, Jagtial. The petitioner herein, is the defendant, in the above suit, filed for recovery of Rs.2,89,500/- with future interest at 24% per annum for the principal amount of Rs.75,000/- on the basis of unregistered simpler mortgage deed dated 28.4.1993. Pending the suit, the defendant also filed I.A.No.926 of 2010 under Order XIV, Rule 2 of C.P.C, requesting the Court to decide the additional issue of limitation framed on 6.8.2008 as a preliminary issue in O.S.No.29 of 2005. The said application was dismissed. Aggrieved by the same, the present Civil Revision Petition is filed. Heard learned counsel for the petitioner. The learned counsel for the petitioner would submit that having regard to the fact that there is no disputed questions of fact and it is a purely a question of law that Ex.A2, which has been already marked as an unregistered mortgage deed and the same needs to be decided first. On the face of it, under the provisions of law, the mortgage deed needs to be registered and the same is not registered. Therefore, the same is not admissible in law. In that view of the matter, whether this particular document is within limitation or not, is to be decided as preliminary issue, which is already framed by the Court below. Therefore, he contends that the order passed by the Court below in dismissing the application is erroneous and needs to be interfered with. In support of his contention, the learned counsel for the petitioner relied upon the judgments reported in KAKARAPARTHY BHAVANARAYANA v . THE OFFICIAL RECEIVER, KRISHNA, REPESENTING THE ESTATE OF SONTI VENKATARATNAM, CHILAKALAPUDI, MASUIPATNAM AND OTHERS[1]., wherein this Court held as follows: “Section 58 (f) of the Transfer of Property Act recognizes a mortgage by deposit of title deeds as a form of mortgage. It provides that it may be effected by a person “delivering to his creditor or his agent documents of title to immovable property with intent to create a security thereon”. It means that when the debtor deposits with the creators the tile deeds of his property with a view to create security the law implies a contract between the parties to create a mortgage and no registered instrument is required ……Under Sec.59 as in other forms of mortgage; the parties can also choose to reduce the contract into writing in which case the deposit and the document both form integral parts of the transaction and as a document creating security requires registration under Section 17 of the Indian Registration Act 1908 as a non- testamentary instrument creating interest in immovable property, where the value is rupees one hundred and more. If a document of this nature is not registered – as provided under Section 49 of the Indian Registration Act it cannot be used in evidence at all and the transaction cannot be proved by oral evidence either in view of what was provided under Section 91 of the Evidence Act. That is how, though a mortgage by deposit of title deeds can be created by mere deposit of the title deeds without any written contract between the parties but once the contract or the bargain as it is called, between the parties is reduced to writing it cannot become effective unless the writing is registered. As already mentioned from the language used in Ex.A-7 it does not appear that the creation of the mortgage was apart and dissociated from the document. It is also significant to note that after the written statements were filed, by the defendants alleging that the letter itself constituted the contact of the mortgage as it was an integral part of the transaction and not merely the evidence of past or prior transaction of an equitable mortgage and requires to be registered and as it is not registered it is not admissible in evidence the plaintiff amended the plaint by adding a fresh paragraph as 3 (a) which is as follows:- “3 (a). When the plaintiff demanded for repayment of the loans, late Sonti. Venkataratnam asked for further time and offered to deposit his title deeds as a security and accordingly he brought and kept the title deed as a security with the plaintiff in the morning of 7-11-1951 with a definite intention to keep the same in deposit with the plaintiff so as to serve as security for the repayment of the loans due under the prior promissory notes. Thus the mortgage by deposit of title deeds was created with the delivery of the document of title dated 5-2-1948 in the morning of 7-11-1951 itself. When the plaintiff asked late S. Venkataratnam to get a written statement executed stating that the title deed had been deposited with the plaintiff, late S. Venkataratnam brought the typed Memorandum signed and delivered the same to the plaintiff in the evening of the same day in the presence of his son and got it attested””. In KODALI VENATA RAMA RAO Vs. THE INDIAN BANK LTD., AND OTHERS[2], wherein this Court held as follows: “The essence of a mortgage by deposit of title deeds is the actual handing over by the borrower to the lender of the documents of title to immovable property with the intention that those documents shall constitute a security to enable the creditor to recover the money lent by him. If it is not a deposit simpliciter, but if the parties choose to reduce the contract to writing, then it is the express bargain between the parties as embodied in the document that would be the sole evidence of the terms. In the latter case, the deposit and the document both constitute integral parts of the same transaction and the creation of the mortgage is effected only thereunder. The requirement of compulsory registration would be attracted in such circumstances.” In GADIYARAM PADMAVATHI v. ADDEPALLI HANUMANTHA RAO[3], wherein this Court held as follows: “At this juncture, we may also point out that not only depending upon the various facts and circumstances but also keeping in view the trend of the litigation, which is on increasing side, for various reasons should be dissuaded from being initiated if no substantial cause of action to try the suit. This would enable the Court from avoiding any unnecessary expenditure of time and money not only of the Court but also the parties to the litigation. Therefore, whenever the Court found that there is an apparent reason on record i.e., the plaint and the relevant material filed along with it that there is no real cause of action, the same can be decided as almost a preliminary question. It is also well settled law that rejection of a suit can be sought for at any time during the pendency of the suit and no material except the plaint averments and the supporting documents can be gone into while exercising the power under Order VII Rule 11 CPC. Hence, it is equally necessary while exercising such drastic and exceptional power the Court should also be cautious in scrutinizing the facts and circumstances culled out only from the plaint and the documents annexed thereto.” In C. VENKATASREERAMAKRISHNA RAO v. J.L. NARASIMHA RAO[4], wherein this Court held that it is clear from Order VII Rule 11(d) when the suit appears from the statement in the plaint to be barred by any law, the plaint is liable to be rejected. When the suit is barred by provisions of the Limitation Act, 1963 by the very statements appearing in the plaint, the rejection of plaint under Order VII Rule 11 is within the scope of the jurisdiction conferred on the Court under that provision. The petitioner herein is the defendant in the suit. The suit is filed for passing of the preliminary and final decree for Rs.2,89,500/- and with future interest at the rate of 24% per annum from the date of the suit till the date of realization of the entire amount to be passed against the defendant’s mortgaged property shown in the schedule and to direct that the property be sold under Order 34 Rule 4 of C.P.C and the sale proceeds thus realized to be paid to the plaintiff; and that a decree be passed for recovery of any amount found due, after deducting the sale proceeds of mortgaged property against other properties of defendant. The case of the petitioner is that the unregistered mortgage deed is inadmissible in evidence and Article 62 of the Limitation Act, 1963 which provides limitation for a period of 12 years for recovery of mortgage amount applies only to the registered mortgage deed and Section 68 of the T.P Act presupposes a valid mortgage deed means a mortgage deed duly registered as required under Section 59 of the T.P Act, but the unregistered mortgage deed which ought not to have been received as evidence of mortgage, was received as Ex.A2 and the limitation for filing a suit for recovery of amount, in the absence of a registered mortgage deed, is three years under Article 19 of the Limitation Act and that the additional issue may be decided as a preliminary issue since the suit is time barred. The respondent filed counter therein stating that the petition is belated, that the plea of imitation being a mixed question of fact and law cannot be decided as a preliminary issue and that the petition may be dismissed. After hearing both sides, the Court below dismissed the application relying on the decision of this Court in V.V. BALASUBRAMANYAM v . B. MARKANDEYULU (2011 (1) LAW SUMMARY 40), wherein this Court held that rejection of a plaint is an extraordinary step that entails in denial of access to court and as such Order VII Rule 11 CPC enlists limited grounds on which a paint can be rejected, and as Ex.A2 was already marked and that its nature and admissibility in evidence are yet in question and the limitation aspect depends thereon as to whether the suit falls within Article 19 or 21 of the Limitation Act as contended by the respondent/plaintiff and the same is being a mixed question of fact and law, it is not desirable to decide the same as a preliminary issue. Accordingly, the said petition was dismissed. The learned counsel for the petitioner submits that there are no disputed questions of fact with regard to the date of transaction and the mortgage deed dated 19.4.1993, is an unregistered document. Therefore, the aspect of limitation is very clear and that the suit is barred by limitation. In which case, deciding the question of limitation as a preliminary issue would save the time of the Court and the parties will also be not subjected to hardship. It is true that Order XIV, Rule 2 CPC contemplates that the Court can pronounce the judgment on all issues and Order VII Rule 11 contemplates for rejection of the plaint. The application is filed only under Order XIV Rule 2 to decide the issue of limitation framed on 6.8.2008. There is no dispute with regard to the principles enunciated by this Court in the judgment cited by the learned for the petitioner but the facts remains that in this case the issues were framed in the year 2008 and the trial has already been commenced, and it is well settled that the question of limitation is always a mixed question of fact and law and the aspect depends on several factors in the dispute/lis for adjudication. Further, Ex.A2 was already marked and its nature and admissibility in evidence are yet in question and the limitation aspect depends thereon as to whether the suit falls within Articles 19 or 21 of the Limitation Act. Therefore, it is not desirable to adjudicate the matter by making issue of limitation as a preliminary issue and adjudicate the same before pronouncement of the judgment on all the issues. Having regard to the facts and circumstances of the case, I do not see any reason to hold that the Court below had committed an error in dismissing the application particularly, after taking into consideration that the alleged mortgage deed was marked as Ex.A2 in the year 2008. In that view of the matter, I do not see any irregularity or illegality in the order passed by the trial Court. Accordingly, the Civil Revision Petition is dismissed. No costs. ___________________ Justice G. Chandraiah Date:21.4.2011. mrb [1] 1971 II Andhra Law Times Reports 39 [2] 1969 (1) APLJ 145 [3] 2007 (6) ALD 368 (DB) [4] 2010 (5) ALD 656