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State Bank of India, Delhi Vs. O.P. Gupta and ors. - Court Judgment

LegalCrystal Citation
SubjectBanking
CourtDelhi High Court
Decided On
Case NumberCivil Suit No. 560 of 1976
Judge
Reported inAIR1979Delhi201
ActsCode of Civil Procedure (CPC), 1908 - Sections 16 and 120
AppellantState Bank of India, Delhi
RespondentO.P. Gupta and ors.
Advocates: I.N. Shroff and; R.P. Kapur, Advs
Cases ReferredRe. State Bank of India v. Himalayan Exporters
Excerpt:
.....madras - however section 16 of the code would be applied to the high court of delhi for original civil jurisdiction - section 13: [altamas kabir & cyriac joseph,jj] custody of child - welfare of child vis--vis comity of courts - the minor girl child of 3 1/2 years was brought to india by her mother. the minor girl was a citizen of u.k. being born in u.k. her parents had set up their matrimonial home in u.k. and had acquired status of permanent residents of u.k. the child with her mother was supposed to return to u.k. but the mother cancelled her tickets and remained behind in india. the husband thereupon started procededings before the high court of justice, family division. u.k. praying for an order that the minor child be made a ward of the court and for a direction upon the wife..........16, 17 and 20 of the civil p c. are not applicable to the high courts in exercise of the original civil jurisdiction. the division bench of this court in suit no. 51 of 1968 in re. state bank of india v. himalayan exporters by judgment dated 20th nov. 1970 has held that section 120 of the code cannot be read to exclude the applicability of ss. 16, 17, and 20 of the code to this court in exercise of its original civil jurisdiction. it was observed that amendment introduced in the heading of part ix and s. 116 of 1he code by s. 14 of the civil p. c. amendment act 2 of 1951. has the result of excluding the application of section as 16, 17 and 20 of the code to the three high courts at calcutta, madras and bombay which were the only high courts at that time (1951) exercising ordinary.....
Judgment:
ORDER

1. This is a suit for the recovery of Rs. 52,237.51 paise. The plaintiff granted following cash credit facilities to defendant No. 1:-

(a) Cash Credit (Medium Term Loan for Working Capital) Rs. 28,000/- (b) Cash Credit (Medium Term Loan for Machinery) Rs. 9,200/- (c) Cash Credit (Special Hypothecation) Rs. 10,000/-

2. On 9 the May, 1972, defendants Nos. 1 to 3 delivered to and deposited with the plaintiff the title deeds in respect of the House Property bearing No.87, Dooli Piao, mathura with intent to create a mortgage in favor of the plaintiff as collateral security for advances made or to be made. Again on 26th July, 1973 defendants Nos, 1,2,4 and 6further delivered to and deposited with the plaintiff title deeds in respect of the building bearing Municipal Seriall No.275m Dooli Piao Mathura, measuring 308 square yards with intent to creates a mortgage in favor of the plaintiff as Collateral Security thereof for advances made or to be made. The defendant No.1 executed the agreement of Medium Term Loan to the extent of Rs. 28,000/- and a demand promissory note for Rs. 28,000/- in favor of defendants Nos.2,4,5 and 6 on 30th July, 1973, Defendants Nos. 2 to 6 executed in favor of the plaintiff an Agreement of Guarantee dated 30th July, 1973 and endorsed the said Demand promissory Note dated 30th July, 1973 in favor of the p1aintiff. The defendant No. I executed another agreement for Medium Term Loan against pledge of moveable machinery on 4th Oct 1973 to the extent of Rs. 9200/- in favor of the plaintiff and a demand Promissory Note dated 4-th Oct 1973 for Rs. 9200/- in favor of defendants Nos. 2 to 6 endorsed this demand Promissory Note in favor of the plaintiff. Further a demand promissory Note for Rs. 10.000/- and an agreement for hypothecation and guarantee was executed to the extent of Rs. 10,000/- by defendant No. 1 on 4th October 1973. Defendants Nos. 2 to 6 also executed the agreement of guarantee dated 4th Oct. 1973. Defendant No.1 availed of the cash credit facilities from the plaintiff. The sum of Rs,52,237.51 paise is due to the plaintiff by way of principal, interest and charges under the three cash credit facilities referred to above. This amount was transferred to the protested Bill Account on 29 the July, 1976. The plaintiff claims decree against all the defendants for Rs. 52,237.51 with customary penal interest at the rate of 18% from the date of the suit till realization, a preliminary decree for sale of the two immovable properties referred to above and situate at Mathura. The properties pledged with the plaintiff-Bank are fully detailed in Schs. 'A' and 'B' attached to the plaint.

3. Defendants Nos. 1.2.5 and 6 filed written statement admitting the claim of the and plaintiff and pleading that the amount could not the repaid on account of heavy losses and want of money, that the defendants pledged the two properties at Mathura with the plaintiff-bank is also admitted. The other defendants did not file any written statement. Subsequently the defendants absented themselves.

4. The plaintiff-bank has examined Shri A S. Sharma. Branch Manager who has deposed in support of the case set up in the plaint.

5. The present suit is for the recovery of money by sale of the mortgage properties situate at Mathura S. 16 of the Civil P. C. is as under:-

'16 Subject to the pecuniary or other limitation prescribed by any law, suits-

(a) for the recovery of immovable property with or without rent or profits,

(b) for the partition of immovable property,

(c) for foreclosure, sale or redemption in the case of a mortgage or charge upon immovable property,

(d) for the determination of any other right to or interest in immovable property,

(e) for compensation for wrong to immovable property.

(f) for the recovery of movable property actually under distrait or attachment,

shall be instituted in the Court within the local limits of whose jurisdiction the property is situate: Provided that a suit to obtain relief respecting, or compensation for wrong to, immovable property held by or on behalf of the defendant may, where the relief sought can be entirely obtained through his personal obedience, be instituted either in the Court within the local limits of whose jurisdiction the property is situate, or in the Court within the local limits of whose jurisdiction the defendant actually and voluntarily resides, or carries on business, or personally works for gain, 'Explanation - In this section 'Property' means property situate in India.'

6. A suit for foreclosure, sale or redemption in the case of a mortgage or charge upon immovable property under this section is to be instituted in the court within the local limits of whose jurisdiction the property is situate. Thus as the property not situated within the jurisdiction of this court but is situated at Mathura this court has no jurisdiction to entertain the present suit. The I earned counsel for the plaintiff contended that under S. 120 of the Civil P. C. Ss. 16, 17 and 20 of the Civil P C. are not applicable to the High Courts in exercise of the original civil jurisdiction. The Division Bench of this Court in Suit No. 51 of 1968 in Re. State Bank of India v. Himalayan Exporters by judgment dated 20th Nov. 1970 has held that Section 120 of the Code cannot be read to exclude the applicability of Ss. 16, 17, and 20 of the Code to this court in exercise of its original civil jurisdiction. It was observed that amendment introduced in the heading of Part Ix and S. 116 of 1he Code by S. 14 of the Civil P. C. Amendment Act 2 of 1951. has the result of excluding the application of Section as 16, 17 and 20 of the Code to the three High Courts at Calcutta, Madras and Bombay which were the only High Courts at that time (1951) exercising ordinary original Civil jurisdiction. The amendment was never contemplated to cover the case of future High Courts. This High Court was established by the Delhi High Court Act 25 of 1966. Sections 16, 17 and 20 of the Civil P. C. in view of this Division Bench judgment are applicable to this Court in the exercise of its ordinary original civil jurisdiction. I, thereforee, hold that this Court has no jurisdiction to entertain the present suit under S. 16 of the Civil P. C. Accordingly, I direct the plaint be returned to the Plaintiff for presentation to the court having jurisdiction in the matter. There will be no order as to costs.

7. Order accordingly.


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