JUDGMENT Rajeshwari Prasad, J. - Rallis India Ltd. a company incorporated under the Indian Companies Act, having its. registered office at Calcutta, filed the suit giving rise to the appeal, against Shanker Commerce and Industries Ltd., which also is a company incorporated under the Indian Companies Act and has its registered office at Calcutta. The suit was for recovery by the plaintiffs from the defendants, of a sum of Rs. 65,542/- and for a declaration that immoveable properties mentioned and described in schedule "F" of the plaint stand charged with the plaintiffs dues claimed in this suit. A preliminary mortgage decree was sought. 2. Allegations made in the plaint inter alia are that on different dates beginning from 2nd June 1949 and ending on 16th day of April 1951, the plaintiffs under several contracts supplied various goods to one R. L. Morarka Ltd. of Calcutta, the price of which amounted to Rs. 4,86,371/1/-. The plaintiff also incurred transport charges, extra duty and market brokerage as detailed in schedule "A" of the plaint. A sum of Rs. 7,818/1/- was due to the plaintiff against R. L. Morarka Ltd. by way of interest on certain bills which remained unpaid. On the 21st March 1950, the defendant company agreed that in consideration of the plaintiff supplying the said R. L. Morarka Ltd. with goods, the defendants would guarantee to the plaintiff for the due payment of price and other charges as well as interest and with this, and in view, the defendant company deposited with the plaintiff company at Calcutta title deeds relating to certain immoveable properties with intent to create a security thereon for the payment to the plaintiff on demand of all money which were due to the plaintiff in respect of the price and other accounts referred to in the plaint. A memorandum was drawn out on the 21st day of March 1950 placing on record the above mortgage, and later on a supplemental deed was also executed on the 18th April 1952 between the parties. After accounting, a sum of Rs.. 65,542/- was found to be due to the plaintiffs, but neither R. L. Morarka Ltd. nor the defendant company paid the sum or any part thereof. 3. The suit was contested by tire defendants. After accounting, a sum of Rs.. 65,542/- was found to be due to the plaintiffs, but neither R. L. Morarka Ltd. nor the defendant company paid the sum or any part thereof. 3. The suit was contested by tire defendants. The defendant company denied the supply of goods by the plaintiff company to R. L. Morarka Ltd. during the period and of die value disclosed in the plaint. It was alleged that nothing was due to the plaintiffs. It was further alleged that the defendant company had never guaranteed the payment of the plaintiffs dues against R. L. Morarka Ltd. There was no agreement or deposit of title deeds with a view to create equitable mortgage as alleged by the plaintiffs. Towards the beginning of 1950, the title deeds referred to in the plaint were given to the plaintiff company at their request for inspection. Sri R. L. Morarka was pursuaded to put his signature on the above mentioned documents prepared by the plaintiff company without understanding the contents thereof. It was then alleged that the court did not have the jurisdiction to try the suit and the claim of the plaintiffs was barred by time. The suit was also said to be bad for non-joinder of R. L. Morarka Ltd. who was a necessary party. The further plea raised was that no mortgage in law or in fact was created and there was no consideration for the same. The memorandum and the supplemental deeds of 21st of March 1950 and 18th April 1952 respectively were not legally executed and registered. The said documents were merely paper transactions and were unenforceable in law. 4. The trial court framed the issues which arose on the pleadings of the parties. 5. The findings returned by the trial court are, that a sum of Rs 65,542/- was due to the plaintiffs from R. L. Morarka Ltd. and that the plaintiff was also entitled to interest at 5 per cent per annum. The claim of the plaintiffs on the basis of mortgage was within time. The suit was not bad for non-joinder of R. L. Morarka Ltd. The defendants had not deposited the title deeds with the plaintiffs for inspection. The claim of the plaintiffs on the basis of mortgage was within time. The suit was not bad for non-joinder of R. L. Morarka Ltd. The defendants had not deposited the title deeds with the plaintiffs for inspection. In spite of above findings having been returned in favour of the plaintiffs by the trial court, the trial court proceeded to dismiss the plaintiffs suit on the ground that the memorandum dated 21st March 1950 and the supplemental deed dated 18th April 1952 (Ex. II and I respectively) were documents which purported to create equitable mortgage, but as the documents were not registered, they were inadmissible in evidence and after excluding the said two documents, there was no evidence on the record to prove that any equitable mortgage as alleged in the plaint was created. 6. In view of the fact that all the findings relating to the merits of the claim stood in favour of the plaintiff-appellants, the only point urged before us in anneal on behalf of the plaintiff-appellants. was that the finding of the trial court that Exs. I and II were executed with a view to create equitable mortgage, is incorrect, and that the trial court went wrong in dismissing the plaintiffs suit on that ground. The submission made by the learned counsel for the appellant is that the memorandum (Ex. II) was only intended to be a record of an accomplished transaction and that, the document was not executed with a view to create any equitable mortgage. It was not required to be registered and was, therefore, admissible in evidence. 7. So far as Ex. I is concerned, the contention of the learned counsel for the appellant is that it was merely an acknowledgment of the previous transaction, and that document also, therefore, did not require to be registered. 8. The learned counsel for the respondent on the other hand urged that it was by means of the aforesaid two documents that an equitable mortgage was sought to be created, I and in this view of the matter, the finding of the court below, is correct. 9. 8. The learned counsel for the respondent on the other hand urged that it was by means of the aforesaid two documents that an equitable mortgage was sought to be created, I and in this view of the matter, the finding of the court below, is correct. 9. Sec. 58 Clause (f) defines a mortgage by deposit of title deeds as follows: - "Where a person in any of the following towns, namely, the town of Calcutta, Madras, Bombay, and in any other town which the State Government concerned, may by notification in the Official Gazette specify in this behalf, delivers to a creditor, or his agent document of title immovable property, with intent to create a security thereon, the transaction is called a mortgage by deposit of title deeds." 10. Delivering of documents of title immovable property and the intention to create a security thereon, are the two essentials of the transaction as is clear from the above noted provision. Unlike other mortgage transactions, it is not necessary to execute formal registered deed of mortgage in the case of mortgage by deposit of title deeds. This, position is further clarified by Sec. 59 of the aforesaid Act which reads as follows: - "Where the principal money secured is Rupees one hundred or upward, a mortgage other than a mortgage by deposit of title deeds, can be affected only by a registered instrument signed by the mortgagor and attested by at least two witnesses." 11. The view of law, however, which appears to be fully settled is that where a mortgage by deposit of title deeds is sought to be created by means of a formal deed, such deed is necessarily registrable under Sec 17 of the Indian Registration Act, and if the said document is not admissible in evidence for want of registration, then the transaction could not be proved by evidence de hors. In the case of Kedarnath Dutt v. Shamlal Khettry, 11 BLR 405 the Privy Council made the following observations: - "The role with regard to writings is that oral proof cannot be substituted for the written evidence of any contract which the parties have put into writing. And the reason is that the writing is tacitly considered by the parties themselves as the only repository and the appropriate evidence of their agreement. And the reason is that the writing is tacitly considered by the parties themselves as the only repository and the appropriate evidence of their agreement. If this memorandum was of such a nature that it could be treated as the con tract for the mortgage and what the parties considered to be the only repository and appropriate evidence of their agreement., it would be the instrument by which the equitable mortgage was created, and would come within Sec. 17 of the Registration Act." 12. Again in the case of Pranjivandas Metha v. Chan Malphee, 14 ALJ 638 the Privy Council made the following observations: - "The law upon this subject is be yond any doubt: (1) Where titles are handed over with nothing said except that they are to be security, the law supposes that the scope of the security is the scope of the title. (2) Where, however, titles are handed over accompanied by a bargain that bargain must rule. (3) Lastly, when the bargain is a written bargain, it, and it alone, must determine what is the scope and extent of security." In the case of Shaw v. Foster, 1872 L.R. 5 the observation made was to the effect that though it was well settled rule of equity that a deposit of a document of title without more, without writing, or without word of mouth, will create in equity a charge upon the property referred to, that general rule would not apply when there is such a deposit accompanied by actual written charge. In that case, actual terms of the written document must be referred to, and all implication that might be raised, supposing there was no document, is put out of the case and reduced to silence by the documents by which alone, the parties must be governed. 13. The same view was taken in the case of M. Subramonian v. M. L. R. M. Lutchman, A.I.R. 1923 P.C. 50 14. The question, however, whether such a document purports to create a mortgage or not is a question which must necessarily be decided on the facts of each case. 15. The question, therefore, we have to decide in this appeal whether the memorandum Ex. II is of such a nature that it could be treated as tire contract for the mortgage and which the parties considered to be the only repository and appropriate evidence of their agreement. 15. The question, therefore, we have to decide in this appeal whether the memorandum Ex. II is of such a nature that it could be treated as tire contract for the mortgage and which the parties considered to be the only repository and appropriate evidence of their agreement. It is necessary to quote the language of the relevant part of the memorandum Ex. II which is as follows: - "Memorandum that on the 21st day of March 1950, Shanker Commerce and Industries Ltd. (a company incorporated and registered under the Indian Companies Act, 1913 and having its registered office at No. 15, Gariahat Road in the town of Calcutta) delivered to and deposited with Rallis India Limited (a company incorporated and registered under the Indian Companies Act 1913 and having its registered office at No. 16, Hare Street in the town of Calcutta) the documents of title set out in the schedule hereto with in tent to create an equitable mortgage of the properties comprised in tire said document of title and all their rights therein and all of the building structures, plant and machinery, fixtures and fittings and other things thereon and the rights, easements and appurtenances thereto belonging or therewith enjoyed as security for the due payment and discharge on demand of the sum of Rs. 1,20,000/- (Rupees one lac twenty thousands only) due by them M/s Rallis. India limited and also on continuing security for the due payments and discharge of all their present and future indebtedness and liabilities. Liabilities to M/s. Rallis. India limited of any kind and for any account whatsoever from time to time upto the sum of Rs. 2,00,000/- (Rupees two lacs only) and costs and disbursements in relation there together with interest thereon until payment of realisation at the rate of 5 per cent per annum." 16. Relying on the language of the memorandum quoted above, learned counsel for the appellants urged that title deeds with intent to create an equitable mortgage had already been delivered as a separate transaction before the aforesaid memorandum was drawn out. He relies on the use of past tense in the verb "delivered" and "deposited" which occurred in the above quoted passage. He relies on the use of past tense in the verb "delivered" and "deposited" which occurred in the above quoted passage. After carefully considering the language used in the memorandum, we are of the view that merely because of the use of past tense of the verbs "deliver" and "deposit", it cannot be said that a mortgage by deposit of title deeds bad already been created by means of any separate transaction, and that the memorandum was only a record of that accomplished transaction. It is expressly declared that it was on the 21st day of March 1950 itself when the document was written, that the title deeds were delivered and deposited. In documents of this type, it is not unusual to find a verb being used in past tense in spite of the fact that parties are acting under the document itself. After making recital about delivery and deposit of title deeds with a view to create an equitable mortgage, the document proceeds to declare that charge was created over properties, comprised in the said document of title and over all the rights thereon and all the buildings, structures, plant and machinery, fixture and fittings and other things, as well as on the right of easement, appurtenances in respect of said immoveable properties by way of security for the due payment and discharge on demand of the sum of rupees 1,20,000/- due against the mortgagor, and also as continuing security for the due payment and discharge of all their present and future indebtedness and liabilities, upto the maximum limit of two lac rupees. The terms of the document further indicate that interest on the amount due upto the date of payment would be payable at 5 per cent per annum. It is abundantly clear that the document itself brings about the bargain agreed upon between the parties, the important terms of which are disclosed therein. It is also conspicuous that mortgage said to be created was with a view to secure payment of money due to the plaintiff from Shanker Commerce and Industries Limited itself. No reference to the liability of Messrs R. L. Morarka Ltd. has been made in the aforesaid memorandum. As a matter of fact, it is not the plaintiffs case that any sum was due to the plaintiff's from Shanker Commerce and Industries Ltd., the defendants, on the date when the aforesaid memorandum was executed. No reference to the liability of Messrs R. L. Morarka Ltd. has been made in the aforesaid memorandum. As a matter of fact, it is not the plaintiffs case that any sum was due to the plaintiff's from Shanker Commerce and Industries Ltd., the defendants, on the date when the aforesaid memorandum was executed. 17. Ex. I described as supplemental deed dated 18th April 1952 tells a different tale. This deed professes to be a deed of Supplemental, to the memorandum of deposit of title deeds dated 21st March 1950. What has been said in the second paragraph of this supplemental deed is that on the 21st March 1950, the mortgagor deposited with the plaintiff company document of title with intent to create an equitable mortgage of the properties for repayment of the total advance of rupees two lacs on the terms and conditions set out in the memorandum. The phrase on the "terms and conditions set out in the memorandum" are rather significant. It was taken tor granted by the parties that the terms and conditions of the equitable mortgage were really contained in the memorandum Ex. II. Paragraph three of Ex. I then goes, on to declare that the mortgagor in fact created the said mortgage in favour of the plaintiff company as guarantor for Messrs R. L. Morarka Ltd. with a view to clear the ultimate indebtedness of the said Messrs R. L. Morarka Ltd. to the plaintiff company not exceeding the sum of rupees two lacs. Paragraph four, then proceeds to say that it appeared that the memorandum did not correctly set forth the true nature of the said mortgage. Paragraph 4 also, therefore, implies that it was taken tor granted that the nature of the mortgage was set forth in the memorandum although there was an error in it. The 5th paragraph of Ex. I then declares that for the purpose of fully effectuating the said mortgage, according to the intention of the parties, the mortgagor was desirous of ratifying and confirming the mortgage in the manner hereinafter appearing. Paragraph 5 also would make it clear that if the mortgage transaction was to be ratified and confirmed, the writing of a deed supplemental to the memorandum was necessary. Paragraph 5 also would make it clear that if the mortgage transaction was to be ratified and confirmed, the writing of a deed supplemental to the memorandum was necessary. The conclusion, therefore, appears to be irresistible that the memorandum itself was the mortgage and the contention that the memorandum was only record of a previous accomplished transaction of a mortgage is not sound. The document thereafter proceeds to lay down the actual terms which it was necessary to declare in the supplemental deed. The first and the second terms not be referred to, but a reference to the third term is necessary. It reads as follows: "Subject to the provisions contained in the deed the memorandum shall remain in full force and effect and shall be read and construed and be enforceable as if the provisions of this deed were inserted therein by way of addition or substitution as the case may be." 18. Again this paragraph suggests that what will be enforceable between the parties is the deed of memorandum read with its supplemental deed. The contents of the supplemental deed, therefore, also go to confirm the view that it was the memorandum itself which contained the contract of mortgage. The only witness examined on behalf of the plaintiff in proof of the transaction is one Sri S.C. Mitra son of Sri Upendra Nath Mitra. His testimony also supports the contention that by means of the memorandum itself, it was intended to create a mortgage. During the course of his examination-in-chief, he stated as given below: "Mudda-alai ne muddai ke haq men ek rehan nama bazaria jama kerne dastawezat likha tha 21-3-50 ko." 19. According to the testimony of this witness also, the mortgage transaction was evidenced by a writing, namely, the memorandum Ex. II. Learned counsel for the appellant had relied on the Privy Council case in Sundarachariar v. Narayana Ayyer, A.I.R. 1931 P.C. 36. In the aforesaid case, a promissory note for Rs. 60,000/- payable on demand with interest at one per cent per mensem and a memorandum which consisted of list of title deeds were given by the mortgagor to the mortgagee. The recital made in the memorandum was as follows: - "Written to E. N. A. Samoo Battar by Krishnaswami Ayyar of S. V. Ramaswami Ayyar and brothers. As agreed upon in person, I have delivered to you the undermentioned documents as security". 20. The recital made in the memorandum was as follows: - "Written to E. N. A. Samoo Battar by Krishnaswami Ayyar of S. V. Ramaswami Ayyar and brothers. As agreed upon in person, I have delivered to you the undermentioned documents as security". 20. The view taken by their Lordship was that the memorandum in that case merely recorded particulars of the deeds, the subject of deposit. The memorandum in the instant case, however, cannot possibly be taken to be a mere list of title deeds, delivered and deposited. 21. The next decision relied upon by the learned counsel is in the case of Rachpal Mahraj v. Bhagwandass Daruka, A.I.R. 1950 SC 272. In the aforesaid case, the observations made by his Lordship Patanjali Sastri, J. would go to show that where the debtor deposited with the creditor the title deeds of his property with intent to create the 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. But if the parties choose to reduce the contract to writing, the implication is excluded by their express bargain, and, the document will be sole evidence of its terms. His Lordship pointed out that in such a case, the deposit and the document both formed integral part of the transaction and are essential ingredients in the creation of the mortgage. It, therefore, requires registration under Sec. 17 of the Registration Act provided the value of the property is more than rupees one hundred. Having noticed the above rule of law, the Supreme Court on the terms of the memorandum in the case before it, came to the conclusion that the document did not re quire registration. It, therefore, requires registration under Sec. 17 of the Registration Act provided the value of the property is more than rupees one hundred. Having noticed the above rule of law, the Supreme Court on the terms of the memorandum in the case before it, came to the conclusion that the document did not re quire registration. The memorandum in that case was in the form of a letter and in the following terms: - "We write to put on record that to secure the repayment of the money already due to you from us on account of the business transaction between yourself and ourselves and the money that may hereafter become due on account of such transaction we have this day deposited with you the following title deeds in Calcutta at your place of business at No. 7 Shambhu Mullick Lane, relating to our properties as Samastipur with intent to create an equitable mortgage on the said properties to secure all moneys including interest that may be found due and payable by us to you on account of the said transactions .........." 22. It may be noticed that the contents of the memorandum in the instant case are distinct and different from the contents of the letter that was the subject-matter of consideration in that case of the Supreme Court. 23. The last case relied upon by the learned counsel for the appellant is the decision of the Supreme Court in United Bank Ltd. v. Lekharam Sonaram & Co., A.I.R. 1965 SC 1591. In that case, it was noticed that the document under consideration did not disclose any stipulation with regard to rate of interest, the amount secured and the details of the title deeds deposited. This being so, their Lordships of the Supreme Court came to the conclusion that the document could not be said to be a contract of mortgage, and consequently, did not require registration. In the case, before us, the memorandum disclosed all the three details which were found missing in the document, which was being considered by the Supreme Court in the aforesaid case. 24. In the case, before us, the memorandum disclosed all the three details which were found missing in the document, which was being considered by the Supreme Court in the aforesaid case. 24. As we have already pointed out the question whether on its terms, particular document could be deemed to be the only repository and appropriate evidence of the agreement of mortgage, must be decided on the facts of each case and unless the contents, of documents are parallel, the decision in one case could not be adopted for deciding another on such a question. 25. Sri Ambika Prasad, learned Counsel for the respondent has further contended that so far as the defendants liability as a guarantor is concerned, that was for the first time created by the supplemental Deed of 1952 Ex. I. So far as II (memorandum) is concerned, it only referred to alleged liability of he defendant company itself and did not refer to the liability of R. L. Morarka Ltd. The present claim of he plaintiff is one in respect of their dues against the aforesaid R. L. Morarka Ltd. It was, therefore, contended that rights and liabilities were declared by means of the supplemental deed. Consequently, that needed to be registered. We find much force in this contention. Its true that the supplemental deed professes to justify itself by explaining that an error had been made in drawing out the memorandum (Ex-II). The learned counsel for the appellant, therefore, urged that, terms and conditions disclosed in the supplemental deed must be read in the memorandum itself retrospectively from the date thereof. It is, however, difficult for us to accept it as correct representation, that while executing the memorandum (Ex. II) by oversight, parties related it to the labilities of the defendant company itself and not to the liability of Morarka Ltd. It is further not possible for us to accept that the alleged error was detected two years after the execution of the memorandum. It is also not clear why the plaintiff company chose to file suit only against the alleged guarantor and not against the principal debtor. 26. It is also not clear why the plaintiff company chose to file suit only against the alleged guarantor and not against the principal debtor. 26. In view of the fact that the mortgage which was relied upon by the plaintiff company to enforce claim against the defendant is not enforceable in law and further in view of the fact that the defendant company did not owe any sum to the plaintiff company, the plaintiff company is not entitled even to a simple money decree against the defendant company by way of an alternative relief. 27. In the view we have taken, the decision arrived at by the court below is correct and the appeal is liable to be dismissed. 28. The appeal is dismissed with costs.