2011 AIR CC 510 (KAR) ::2011 (1) AIR Kant HCR 281 ::2011 (1) AIR Kar R 281 ::AIR 2011 (NOC) (SUPP.) 1431 (KAR.) ::(2011) 2 ICC 569

Karnataka High Court

Hon'ble Judge(s): N. Kumar, C. R. Kumaraswamy , JJ

(A) Limitation Act (36 of 1963) S. 14 — Suit for recovery of money — Based on equitable mortgage — Period stipulated for filing of such suit was 12 years — Further period from which suit is being prosecuted in wrong forum has to be excluded — Suit initially filed before Court having no territorial jurisdiction — On return, plaint represented on same day before Court having jurisdiction — Suit filed within 12 years not time-barred (Para 12)

(B) Transfer Of Property Act (4 of 1882) S. 58 — Suit for recovery of money on basis of equitable mortgage — Defendant entering into distributor agency with plaintiff Corpn for selling distributing fertilisers, seeds, etc — Deposit of title deeds coupled with memorandum entered between parties clearly establishes mortgage by deposit of title deeds in favour of plaintiff — Further execution of same and signature thereon were also proved by report of commissioner as well as handwriting expert — Mortgage stands duly proved (Para 13,14)

(C) Civil Procedure Code (5 of 1908) S. 34 — Rate of interest — Suit transaction is commercial transaction — Memorandum of mortgage do not stipulate rate of interest — But invoice produced clearly shows that defendants had agreed to pay interest @ 12% p a — Plaintiff is entitled to claim interest at 12% p a , which is the agreed rate of interest — Trial Court justified in granting future interest also @ 12% (Para 15)