Mashrique Jute Mills Vs. Jibon Mima Corporation & ors., (S. H. Md. Nurul Huda Jaigirdar, J.)

Case No: First Appeal No. 71 of 2003 With Civil Rule No. 310(f) of 2003

Judge: Md. Nuruzzaman, J And S., H. Md. Nurul Huda Jaigirdar, J.

Court: High Court Division,

Advocate: Mr. Saifur Reza ,Advocate. Mrs. Hosnera Begum, Advocate ,

Citation: 2019(1) LNJ

Case Year: 2018

Appellant: Mashriqui Jute Mills Limited

Respondent: Jibon Bima Corporation and others

Subject: Limitation Act

Delivery Date: 2019-11-26

 

HIGH COURT DIVISION

(CIVIL REVISIONAL JURISDICTION)

Md. Nuruzzaman, J

And

S., H. Md. Nurul Huda Jaigirdar, J.

 

Judgment on

14.01.2018 and 15.01.2018

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Mashriqui Jute Mills Limited

. . . Defendant-Applicant

-Versus-

Jibon Bima Corporation and others

. . .Respondents

Limitation Act (IX of 1908)

Sections 20, 132(C) and 147

Payment should be made on account of a debt before expiration of the prescribed period, but as the instant case is concerned, payment was made during  pendency of the suit on  12.01.1989 in view of Article 132(C) of the Limitation Act after the prescribe period of  12 years. The suit is not for only foreclosure, rather, the defendants have waived to raise the question of limitation depositing the part of loan money at the trial, admitting that the defendants had obtained the loan by deposit the title deeds. Question of limitation once waived by the defendants at their own sweet will; therefore, in appeal they cannot raise the same point of limitation.   . . . (20 and 22)

A.I.R 1941 Privy Council 90; A.I.R. 1939 Privy Council 167; PLD 1969 Karachi 123; PLD 1961 (W.P.) Karachi 537; 39 DLr 1987, 243 to 256; AIR 1938 Lahore 505 to 507; 18 CLJ 369; PLD 1969 Kar 653 and AIR 1953 SC 225 ref.

Mr. Saifur Reza ,Advocate.

. . . For the  Defendant-Appellant.

Mrs. Hosnera Begum, Advocate 

. . . For the Respondents.

JUDGMENT

S. H. Md. Nurul Huda Jaigirdar, J: This First Appeal is directed against the judgment and decree dated 10.07.2002 and 16.07.2002 respectively passed by the Joint District Judge and Commercial Court No.2 Dhaka in Title Suit No. 197 of 2001 decreeing the suit on contest against the defendant appellant and others.

2.             The suit was filed on 29.10.1988 in the Court of Joint District Judge, Second Court, Dhaka, for sale of the mortgaged properties of defendant No.1 for realization of loan money.  The suit eventually was transferred to the Court of Joint District Judge and Commercial Court No.2, Dhaka, and renumbered as Title Suit No.197 of 2001.

3.             The  plaint case, precisely, is that  plaintiff is an Insurance Corporation and defendant No.1, herein appellant, is a private limited company; defendant Nos.2  to 5, are the directors of the  defendant No.1;  defendant No.1  obtained foreign currency loan facilities from the then ‘Pakistan Industrial Credit And Investment Corporation Limited (PICIC)’, presently Defendant-Respondent No.7, by way of creating a mortgage by depositing title deeds to establish a jute mill having 50 Nos. broadlooms; in addition to the foreign currency loan already obtained from PICIC, further Rupees 60,00,000.00(six million) was required for the project and it was resolved that the money would be collected by  issuing shares, having face  value of Rs.10.00 each; it was further resolved that out of the requirements the sponsors of the company would manage/ collect Rs. 30,00,000.00 (three million) and the rest Rs.30,00,000.00 (three million) would  be collected from the different financial institutions and accordingly an agreement/contract was entered into, on 27/03/1070, under the  name and style “UNDER WRITING-CUM-ADVANCE AGREEMENT”, hereinafter  referred to the ‘AGREEMENT’, between the defendant No.1-Apellant and eight (8) Nos. financial institutions including Pakistan Industrial Credit And Investment Corporation Limited ‘PICIC’ and two predecessors of the plaintiff corporation; the financial institutions, as it  reveals from the ‘Agreement’, are chronologically Nos. ii. Investment Corporation of Pakistan hereinafter referred to ICP iii. Pakistan Industrial Credit And Investment Corporation Limited (PICIC)’, iv. Eastern Banking Corporation Limited hereinafter referred to EBCL, v. Premier Bank Limited hereinafter referred to PBL, vi. Habib Enterprises Limited hereinafter referred to HEL, as being underwriter FIRST SET; Nos. vii. Eastern Federal Union Insurance Company Limited hereinafter referred to EFU, viii. Muslim Insurance Company Limited hereinafter referred to MICL, ix. Eastern Mercantile Insurance Company Limited hereinafter referred to EMIC, being underwriters SECOND SET. Under the said Agreement dated 27.03.70, predecessors of the plaintiff, namely ‘EFU and MICL’, hereinabove underwriter Nos.vii and viii ‘EFU and MICL’ granted Rs.5,00,000.00 (five hundred thousand) only and Rs.2,50,000.00(Two hundred fifty thousand) only respectively as bridge loan to the defendant No.1- Appellant on condition to issue 50,000 and 25,000 shares of Rs.10.00 each by the borrower/debtor-defendant No.1; defendant Nos.2 and 3 are the signatories of the Agreement, Demand Promissory Note and letter of Indemnity etc; after the independence of Bangladesh the properties and obligations  of the underwriters, namely ‘EFU and MICL’ were vested  with the government of Bangladesh and that in pursuance of President Order (PO) No. 95 of 1972 and Insurance Corporation  Act, 1973 the bridge loan or advances of ‘EFU’ and ‘MICL’ amounting to Rs. 5,00,000.00 and Rs.2,50,000.00, total being Rs.7,50,000.00 along with interests were vested in the plaintiff; as stipulated in the Agreement dated 27.03.1970, the borrower  defendants are bound and obligated  to pay interests and penal interests on borrowed sum  of Rs. 7,50,000.00; the defendant  No. 1 did not repay the loan including interests even after repeated notices. Hence the suit.

4.             Defendant Nos.1, 7 and 9 filed written statements; the case of defendant No.7, in short, is that the properties and obligations of underwriter No.iii. PICIC and ii. ICP were vested with the defendant  No.7 and that  PICIC granted the foreign currency loan to the defendant No. 1 to the tune  of US $ 1.153 million equivalent to Rs. 5.534 million and to secure the loan the defendant No.1 deposited all its title deeds regarding all its immovable properties with the  PICIC only; besides the foreign currency loan was guaranteed by the  sponsors (defendant Nos.2 and 3) of the company personally; the original title deeds of the immovable properties of the defendant No.1 company are lying with the head office of PICIC at Karachi, Pakistan; the copy of the Agreement dated 27.03.1970 is not available with the defendant-Shangstha and the plaintiff is therefore  put to prove their respective case and that  this defendant does not have any comment regarding the transactions between plaintiff  and defendant No.1 and that as at 01.01.1990 the defendant No. 1 company owes Tk. 1,1800,000.00 to defendant No.7 and that defendant No. 7 is not a necessary/proper party in the suit. Accordingly the contesting defendant No.7 prayed for dismissal the suit with cost.

5.             Defendant No.9-Uttara Bank Ltd. was formerly known as Eastern Banking Corporation Limited (EBCL), underwriter No.(iv).from the ‘First Set’ of financial institutions hereinafter referred to as FI to the agreement dated 27.03.1970, and also granted bridge loan to the tune of Rs. 5,00,000.00 against 50,000 Nos. shares and as the defendant No. 1 did not repay, this  defendant handed over the  shares to  the Ministry of Industries and receipt  Tk.1,10,4000.00 as compensation and that very recently this defendant requested the defendant No.7,owning corporation of underwriter Nos. ii and iii  ICP and PICIC for the money and that as at 31.12.1988 the total outstanding is  Tk.16,22,683.94 including interest.

6.             Defendant No.1, herein appellant, filed written statement alleging that the suit is not maintainable  and that the suit is liable to be  dismissed as being barred by law and that the suit is bad for defect of parities and that the suit is barred by limitation and also barred by principles of  estoppels and acquiescence and that  the suit has no cause of action and that after  receipt of the legal notice dated 19.11.1987 issued by the plaintiff this defendant  approached the managing director of the plaintiff Corporation on 04.12.1987 and proposed to repay the bridge loan amount of Tk. 7,50,000.00 in five years time in installments after waiver  of the interests accrued therein  and further proposed for settlement  of the loan and that the calculations of accounts are inflated  and that this defendant  paid Tk.1,00,000.00 only during  pendency of the suit , on 12.08.1989, as a good gesture and that the plaintiff  acknowledged the receipt of Tk. 1,00,000.00 only by their letter dated 15.09.1989 and that the suit may be dismissed with cost.

7.             On the basis of the aforesaid pleadings of the parties, the  learned Joint District Judge and Commercial Court No.2 framed the following issues for adjudication:

a.       Is the suit maintainable in its present form and manner ?

b.      Is the cause of action arose?

c.       Is the suit bad for defect of parties?

d.      Is the suit barred by limitation?

e.       Is the plaintiff entitled to the decree as prayed for?

8.             At the trial, the learned Joint District Judge and 2nd Commercial Court, Dhaka, recorded the testimony of 1 PW admitted the plaintiff documents in evidence  which have been marked as exhibit 1-10. The defendant No.1. contested the suit and  examined 1 witness and exhibited the document  which has been marked exhibit “L” before the trial court in support  of his written statement. The defendant No.7 examined 1 witness  who is cited DW.2, in support of his written statement. Considering the facts of the suit and evidences available on record, the learned  Joint District Judge decreed the suit by his judgment dated 10.07.2002.

9.             Being aggrieved, the defendant No.1 as appellant preferred this First Appeal.

10.         Mr. Saifur Reza, the learned Advocate appearing on behalf of the defendant No.1 appellant took us through the pleadings of the  suit and written statement, evidences, exhibits, and judgment  and decree with  relevant laws regarding to limitation of the suit. The appellant has nothing to submits regarding to issue Nos. ‘a’ to ‘c’ and ‘e’ of the impugned judgment but admitted the facts  and so far issue  No. “d”, of the said judgment is concerned the learned Advocate has  submitted that the Court below   committed multifaceted error of law and, as such, misdirected himself to arrive at a correct decision. He has further submitted that  the learned Joint District Judge erroneously, both on facts and law, held that the suit is for sale of mortgaged property’; the learned Judge  has also erroneously held that the suit is one under Artice-147 of the Limitation Act; the learned Judge has decided the issue in favour of the plaintiff relying  on the fact that the defendant No.1 in paragraph No.20 of the written statement  admitted that it had repaid Tk.1,00,000.00 only to the plaintiff on 12.01.1989, Therefore, the learned Judge  opined that the loan was renewed and since, the learned Judge added, the suit  is one under Article-147 of the Limitation Act the suit could have been filed within sixty(60) years and, the learned  Joint District Judge further added, since sixty years time is yet to expire form 27.03.1970 the suit is not barred by limitation. He  has next submitted that the finding regarding repayment by the defendant No.1 is, on the face of it, incorrect inasmuch as ext.6, 6(I) and (II) envisages that the defendant made repayment on 13.07.1970, 14.01.71 and 30.12.70 respectively. He has further added that admittedly the defendant made the last repayment on 14.01.1971 to the plaintiff after disbursement of the bridge loan by the predecessors of the plaintiff. He has next added  that it is also admitted that the repayment dated 12.01.1989 was made after the suit was filed , on 29.10.1988, and it is also admitted that  the said repayment was made after, at least, eighteen  years after repayment dated 14.01.1971 (Ext. 6(I) of the disbursement of the loan money. He  has next added that so far  the finding of the learned Joint District Judge, regarding renewal or  computation of fresh period of limitation of the loan money, is concerned, as reasoned by the learned Judge to arrive at as such is a wholesale error of law in view of section-20, read with Article-132 (C) and Artice-147 of the Limitation Act. He has next submitted that  a plain reading makes it  crystal clear that payment should be made on account  of a debt before  expiration of the  prescribed period, but as the case in hand is concerned , payment  was made  firstly, after the suit was  instituted and secondly, after  eighteen years from due and thirdly, in view of  Article-132 (c) of the Limitation Act, after the prescribed period of 12 (twelve) years; Article-132 ( C ) is the specified article  for a suit for money only relating to mortgage by deposit of title deed. He has next added that the learned Judge erroneously found the Agreement dated 27.03.1970 (Ext.02) to be the ‘mortgage by deposit of title deed’ of which the plaintiff, as found by the learned Judge, to be the mortgaged; the definition of a mortgage by deposit of title deed has been contemplated in Section-58(f) of the Transfer of Property Act, hereinafter referred to as ‘T.P. Act’. He  has next added that a plain reading of the unregistered Agreement / contract, namely’ Underwriter-Cum-Advance’ Agreement, reveals that the predecessors of the plaintiff were not mortgagees, rather  predecessor of defendant No.7(PICIC) was the mortgagee for the foreign currency loan from earlier without any memorandum of deposit of title deed; while the plaintiff’s predecessors were parties to the said Agreement/Contract as financial institutions who did agree to sanction bridge loan to the defendant of which PICIC, being  earlier mortgagee, stood security of the  future bridge loan. He has further added that the Agreement is not a memorandum of deposit of title deed rather an unregistered Agreement/ Contract and therefore inadmissible in evidence. He has next added that should the Agreement, for arguments sake, is considered to be an admissible ‘memorandum of deposit of title deed’ the expiration of limitation of such mortgage ought to have been read with Article 132 (c) of Limitation Act which provides 12 (twelve) years  from the time when the money, sued for, becomes due , as the suit  was filed more than 18(eighteen) years after money, sued for, became  due the suit is hopelessly barred by limitation. He  has further submitted that learned Judge erroneously held that the suit is one under Article-147 of the Limitation Act inasmuch as  the said Article is applicable only in case of those mortgagees who are  qualified to sell the mortgaged  property in view of section 67 of  the ‘ T. P. Act’. He has next submitted that  a plain reading of Article-132( c ) with Article-147 of the Limitation Act and Section-67 (a) of the ‘T .P. Act’ would make it crystal clear; that Section -67 of the ‘ T.P. Act’ deals with the rights of the mortgagee to foreclose or sale subject  to conditions as contemplated in clause Nos. (a) to (d).

Clause (a) of section 67 of the ‘T.P. Act’ contemplates in the following manner:

“S.67 Nothing in this section shall be deemed-“(a) to authorize any mortgagee other than a mortgagee by conditional sale or a mortgagee under an anomalous mortgage by the terms of which he is entitled to foreclose, to institute a suit for foreclosure, or an usufructuary mortgagee as such or a mortgagee by conditional sale as such to institute a suit for sale.”

11.         It has further submitted that the Agreement does not stipulate any term, whatsoever, empowering the alleged mortgagee to sale the alleged mortgaged property. Besides, Article 132 (c ) of the Limitation Act has been specifically provided  for filing suit for money/interest by the mortgagee under section 58 (f) of the T.P. Act widely known as mortgagee by depositing  title deed’. Besides, he submits that the learned Court below fell into error in holding that the  Underwriting –Cum-Advice Agreement  dated 27.03.1970 (Exhibit-02) to be a deed of mortgage and the plaintiff is a mortgagee inasmuch as nowhere in the four corners of the agreement none, except the predecessor of the defendant  No. 7 PICIC, as divulged in the Agreement , was identified as mortgagor or mortgagee. Neither the recital relating to the purpose of the Agreement uttered for once the term ‘mortgage’ in any applied form. The Agreement starts with the narration / recital that ‘whereas the foreign currency cost of the project is being financed out of a PICIC (defendant No. 7) fund. The agreement further reveals that there were two sets of financial institutions out of which Nos.ii) to vi) being underwriter FIRST SET and from vii) to ix ) being underwriter SECOND SET with several terms.  Article III (The Advance) was stipulated relating to disbursement and security of the advances and statements regarding deposition of title deeds with PICIC were mentioned.

12.         In article No. 3.01 (c) of Article-III (The Advance) of  the Agreement dated  27.03.1970 reveals the following term:- “(C) – the advance(including the interim finance) shall be secured by a mortgage by deposit of title deeds relating to all the present and future  immovable properties of the company. The title deeds relating to its properties deposited by the company with PICIC to secure the PICIC’s foreign currency loan shall thenceforth be held by PICIC and PICIC hereby agrees to hold the same, in representative capacity on behalf of the underwriters and the interim financiers also to secure the advance and the amount of the interim finance actually disbursed not exceeding Rs.30,00,000.00 to the company and the interest thereon”

He has next added that the aforementioned stipulation makes it crystal clear that the defendant-appellant never ever deposited their title deeds with the predecessors (Underwriter Nos. vii & viii of the second set) of the plaintiff. Rather, the appellant deposited their title deeds with PICIC (from the first set and defendant No.7) to secure the foreign currency loan sanctioned  by PICIC, in view of the ‘Agreement’ is, at best, a contemporaneous unregistered contract. He  has next submitted that the learned Judge fell into error of law in holding the unregistered “Underwriting–Cum-Advance” Agreement as a  memorandum / deed of mortgage by deposit of title deed and the plaintiff is the mortgagor. He further added that if the finding, for arguments sake is found to be lawful, yet no decree even under Article-132 (c), not to speak of Article-147, of the Limitations Act is maintainable inasmuch suit must be filed within 12 years. He has  next added that it is now an established principle of law in view of Section 59 of the T. P. Act, the registration of the document, if it is found to be a contract relating to deposit of title deeds is mandatory, without the registration under section 17 of the Registration Act the memorandum or contract, whatsoever, is inadmissible in evidence in view of the fact that where the parties professing to create a mortgage by deposit of title deeds contemporaneously enter into a contractual agreement in writing which evidences the deposit and contains all the essentials of the transaction, expressly conferring a power of sale  on the mortgagee and in fact purports to be an Instrument not merely evidencing the transaction already completed but by itself effective to create an interest in the property in  favor of the mortgagee, such a document requires to be compulsorily registered. In support of his submission Mr.Saifur Reza the learned Advocate for the appellant referred the following cases: i). A.I.R. 1941 Privy Council 90; ii) A.I.R. 1939 Privy Council 167; iii) PLD 1969 Karachi  123; PLD 1961 (W.P) Karachi 537.

13.         Mrs. Hosenera Begum, the learned Advocate appearing on behalf of the plaintiff Respondent No.1 contended that the loan is admitted. She further contended that it is very true that acknowledgement within the meaning of section 19 of the Limitation Act must be made before the expiration of the period of Limitation acknowledgement (Ext-08) by the director (Defendant No. 4) of  defendant No.1 company was made after the expiration of the limitation and as such the reply,  to the legal notice dated 18.1.1987, being Ref. No. Mash Ji / Head office 87 ka 1388 dated 8.12.1987 (Ext.-8) is needed to be considered an agreement, under section 25(3) of the Contract Act, promising to pay (part of) the debt, and as such another fresh period of limitation for three years would be extended from that date and , added, that in continuation of earlier for promise dated 8.12.1987 defendant paid Tk. 1.00 lac during the pendency of the suit on 12.1.1989. In substantiating her contention the learned Advocate Mrs. Hosne Ara Begum refers to the following cases:

(1)    39 DLR 1987 Page-243 to 256

(2)    AIR 1938 Lahore Page-505 to 507

(3)    18 C L J Page-369

(4)    PLD 1969 Kar Page-653

(5)    AIR 1953 SC Page-225

14.         She further contended that in the instant case it was admitted in the written statement that in continuation and confirmation of the earlier fresh promise dated 08.12.1987, the defendant paid Tk.1.00 Lac on 12.01.1989 in favour of the plaintiff. She has next contended that the fresh promise to pay contained in the reply dated 08.12.1987 to the legal notice and actual payment made on 12.01.1989, confirms the earlier fresh promise to pay. She finally contended that since the fresh period of limitation would start from 08.12.1987 and actual part payment was made on 12.01.1989, the suit is not barred by limitation.  

In reply to the contention as put forward by the Mrs. Hosneara Begum, the learned Advocate for the respondent No.1, Mr. Saifur Reza the learned Advocate for the appellant replied that the alleged acknowledgement (Ext-08) by the director (Defendant No.4) of defendant No.1 company was made after the expiration of the limitation and as such the reply, to the legal notice dated 18.11.1987, being Ref- No. MashJi / Head Office/ /87 Ka 1388 dated 08.12.1987 (Ext.8) is needed to be considered an Agreement, under section 25(3) of the  Contract Act (Act XII of 1872), promising to pay (part of) the debt , and  as such another fresh  period of limitation for three years would be extended from that date and, added , that in  continuation of earlier promise dated 08.12.1987 defendant paid Tk.1.00 Lac during the pendency of the suit on 12.01.1989; to the effect that a fresh period of limitation would start  from 08.12.1987 for 3(three) years needs to read with the statement made in paragraph-14 of the plaint that reads that’ Defendant No.4, on behalf of defendant No.1, caused an application on 08.12.1987 proposing /urging to facilitate the defendant to pay the principal sum only in five yearly installments and waiver the interest but the defendant is obligated to pay the interest and that P.W. 1, only witness examined by the plaintiff, while making the reply, dated 08.12.1987, as Ext-08 deposed that ‘the defendant caused  the application for waiver of interest but we are not bound to waiver interest’. In view of the aforementioned averment and deposition made in the plaint and deposition respectively made by the plaintiff make it crystal clear that there were no acceptance, from  the plaintiff’s  end, of the proposal made on behalf of the defendant.  The plea of Section 25(3) of the Contract Act does not attract as neither any agreement, written or oral, was entered into nor any written promise in compliance with the aforementioned law was executed by the defendant and therefore on the face of it, and for the  following reasons, misconceived:

15.         Firstly because the submission is beyond the pleading and evidences on record, thus, affecting the nature and character of the suit consequently triggering requirement of opportunity to controvert by the defendant  in the written statement and framing issue and a decision by the Court  below in view of the plaint where no statement  in this regard was made, instead it was averred that the suit is for realization of money by selling the mortgaged properties of defendant  No.1 under Article 147 of the limitation Act as the cause of action arose on 27.03.1970 and thereafter on 08.12.1987.

16.         Secondly because section 25 (3) requires an unconditional Agreement, in the form of a promise made in writing and signed by the person to be charged therewith or by his agent generally or specifically authorized in that behalf to pay wholly or in part of the debt. Plain reading of the Ext-8, as alleged, for the first time, to be the Agreement  under Section 25(3) of the Contract Act reveals that it was a mere reply to the legal Notice dated 18.11.1987 with a conditional proposal/ offer urging to accept and thereby facilitate the defendant  to make part payment after waiver  of interest but the plaintiff never accepted the proposal and that should the plaintiff respondent have agreed to its conditions of waiving the interests the proposal  would have ended up in agreement between the parties. He further added to his reply that had the plaintiff agreed to the proposal made by the defendant a formal promise could have been made, but plaintiff neither agreed to the conditional proposal nor facilitated/allowed the defendant to make any promise, whatsoever complying with the requirements of Section 25(3) of the Contract Act. He next added that the submission to the effect that in confirmation of the promise, made in the reply, defendant paid Tk.1,00,000.00 has no substance inasmuch as the same transaction was made after the suit was filed and that Section 25(3) of the Contract Act neither require  such alleged confirmation nor the section has any role to play in this regard. He next replied that besides, the money paid during pendency of the suit was aimed at entering into a compromise/ solenama in order to obtain a compromise judgment / decree but the plaintiff after receipt did not accept the proposal, instead adjusted the money against their whole claim.

17.         Thirdly because the submission relating to Section 25(3) of the Contract Act, made  by the respondent, is misconceived  inasmuch as the same  goes against the plaint as well as the judgment and  decree, appealed against, in view of the judgment that decreed for sale of the alleged mortgaged property for which limitation, as held, under Article 147 of the Limitation Act inasmuch as for the fresh cause of action, as submitted , during hearing, limitation is three years, is not under Section 19 of the Limitation  Act rather, a fresh extension under section 25(3) of the Contract Act.

18.         We have carefully gone through the judgment passed by the Trial Court along with evidence and exhibits as well as record. On hearing  the submission and contention made by the learned Advocate for the appellant and respondent No.1 and considered the pleadings of the parties. Since the learned Advocate for the appellant Mr.Saifur Reza apprises the court that he admit\ the impugned judgment with regard to issue No. “a” to “c and “e” and he will press the appeal so far  issue No.  “d” is concerned only on the point of limitation so we are considering the appeal only in the point  of limitation:

the issue, is the suit barred by limitation? On these point  the learned Joint District Judge held that the suit is a suit for sale of mortgaged property. He next held that the suit is one under Article-147 of the Limitation Act. He further held that the issue of limitation in favour of the plaintiff on relying of the fact in paragraph No.20 of the written statement admitted that it had repaid Tk.1,00,000.00 only to the plaintiff on 12.01.1989 and so, the leaned Judge held that the loan was renewed and since, the learned Judge added, the suit is one under Article-147 of the Limitation Act. The suit could have been filed within 60 years and, the learned Judge further added, since sixty years time is yet to expire from 27.03.1970 the suit is not barred by limitation.

19.         On perusal of the exhibits, impugned judgment and evidence on record it appears to us that regarding repayment by the defendant No.1 is, on the face of it, appears on perusal of ext.6,6(I) and (II) shows that the defendant  No.1 made a repayment admittedly on 13.07.1970, 14.01.1971 and 30.12.1970 respectively, after disbursement of the bridge loan by the predecessors of the plaintiff. It further appears that admittedly repayment dated 12.01.1989 was made after the suit was filed on 29.10.1988. It next appears that so far the finding of the learned Joint District Judge, regarding renewal or computation of fresh period of limitation of the loan money, is concerned, as reasoned held by the learned Judge to arrived at in view of Section 20 of the Limitation Act,1908 read with Article-132(C) and Article-147 of the Limitation Act, 1908.

20.         In the awake of rival contentions advanced from both the sides, it is beneficial to a extract of Section 20 of the Limitation Act,1908 read with Article 132(C) and Article-147 of the Limitation Act,1908, along with Section 58(f) of the Transfer of Property Act,1882.

Section 20(1) reads thus:

“20. (1) Where payment on account of a debt or of interest on a legacy is made before the expiration of the prescribed period by the person liable to pay the debt or legacy, or by his duly authorized agent, a fresh period of limitation shall be computed from the time when the payment was made:……”

a plain reading makes it crystal clear that payment should be made on account of a debt before expiration of the prescribed period, but as the instant case is concerned, payment was made during pendency of the suit on  12.01.1989 in view of Article 132(C) of the Limitation Act after the prescribe period of  12 years.

Article 132 (C) runs thus:

“ 132 (C) Advances secured by mortgage by deposit of title-deeds shall be deemed to be money charged upon immoveable property.”

Article 132(C) is the specified article  for a suit  for money only relating  to mortgage by deposit of title deed.

Article 147 which is as follows:

“Article 147 By a mortgagee for foreclosure or sale.”

21.         The learned Joint District Judge found the agreement  dated 27.03.1970 (Ext.No.2) to be the mortgage by deposit  of title deed of which  plaintiff,  as found by the learned Judge, to be the mortgagee; the definition of a mortgage by deposit of title deed has been contemplated in Section -58(f) of the Transfer of Property Act, 1882. It will be also useful to “quote” Section 58(f) of the Transfer of Property Act which is as follows:

Mortgage by deposit of title-deeds:

“ (f) Where a person in the town of [Dhaka, Narayangonj and Chittagong] and in any other town which the Government [***] may, by notification in the official Gazette, specify in this behalf, delivers to a creditor or his agent documents of title to immoveable property, with intent to create a security thereon, the transaction is called a mortgage by deposit of title-deeds.”

22.         In the present case it appears that the referred laws are applicable in the facts and circumstance of the present suit, so far, as it relates to issue (d) is concern only on the point of limitation. It appears to us that  the trial court rightly  opined that the suit  was for foreclosure  as the defendant obtained the loan by depositing the title deeds. Moreso, admittedly the appellant repaid the loan amounting to Tk. 1,00,000.00/-(one lac) admitting the debt during pendency of the suit. It appears to us that the suit is not for only foreclosure, rather, the defendants have waived to raise the question of limitation depositing the part of loan money at the trial, admitting that the defendants had obtained the loan by deposit the title deeds. Question of limitation once waived by the defendants at their own sweet will; therefore, in appeal they cannot raise the same point of limitation.

23.         To consider the finding with regard to limitation by the learned Subordinate Judge & Commercial court No. 2, Dhaka as we referred to above, it cannot be at all said that those are tainted with patent illegality, legal infirmity and flagrant error of law and fact warranting any interference by this court.

24.         In view of the discussion made herein above we find the submissions as advanced by the learned Advocate for the Appellant bears no merit and decisions and laws as referred by him in support of his submissions also not applicable in the facts and circumstances because of those decisions are quite distinguishable from the facts and circumstance of the instant appeal.

25.         On the other hand the contention as put forward by the learned advocate for the respondent bears merits and decisions and laws as referred by her in support of her contentions also squarely applicable in the facts and circumstances of the instant appeal.

26.          Thus, the appeal having no merits, it fails.

27.         In the result, the appeal is dismissed, however without any order as to costs.

28.         The judgment and decree dated 10.07.2002 passed by the Joint District Judge and commercial court No.2 Dhaka in Title Suit No.197 of 2001 is hereby affirmed.

29.         Consequently, the connected Civil Rule No.310(f) of 2003 is hereby discharged without any order as to costs.    

30.          Send down the lower court record at once.  

31.         Communicate the judgment to the concerned court at once.  

Ed.



First Appeal No. 71 of 2003 With

Civil Rule No. 310(f) of 2003