Judgment : The present application has been taken out on behalf of defendants No. 1 to 4 for an order staying the Suit No. 758 of 1978 and proceedings thereunder, injunction restraining the Plaintiff Bank from proceeding with the suit and other consequential reliefs. 2. The facts of this case shortly are that Mercantile Bank Limited has filed this suit against these defendants along with defendant no. 5 for recovery of a sum of Rs. 21,64,360.66 p. interest at the rate of 15%. declaration that the goods as mentioned in Annexure 'H' and book debts as mentioned in annexure 'H1' are hypothecated and/or charged to the plaintiff by way of first and paramount charge for the payment of plaintiff's dues to the exclusion of all others, sale of the said goods; declaration that the plaintiff has a statutory title and/or interest in respect of the securities mentioned over the 5th defendant and also for an injunction restraining the 5th defendant from proceeding with or executing the decree passed in Suit No. 514 of 1977 against the securities mentioned above, receiver, injunction, costs, etc. 3. The plaintiff's case is that on 4th of June, 1969 an agreement was entered into by and between the plaintiff and the first defendant at its branch office at Netaji Subhas Road, Calcutta whereby the plaintiff at the request of the first defendant agreed to grant accommodation/loan to the first defendant by way of overdraft facilities for a maximum limit of Rs. 3,00,000.00 on condition that the first defendant would hypothecate stocks of finished and semi finished dryers, embossing machines, plywood machines, industrial machines, work in progress and all other stores and raw materials and moveable plants and machinery lying at 117, Raja Dinendra Street Calcutta and Jessore Road, Dum Dum, Culcutta including goods as might be in course of shipment, transit or delivery and document of title negotiable instrument, policies of insurance, present and future book debt, outstanding bills and moneys receivable by the first defendant etc Interest was agreed to be paid at the rate of 4% over the Reserve Bank of India rate with the minimum 9 ½% per annum and other necessary and consequential reliefs., It was further agreed that on default being made by the first defendant of payment of any money thereby secured the plaintiff could take possession and appoint receiver, sell by public auction or by private treaty or otherwise dispose of or deal-with in any manner with the said goods hypothecated. Pursuant to the said agreement the plaintiff granted and/or continued granting overdraft and/or cash redit facilities to the first defendant. On 31st of January, 1970 at the request of the first defendant the limit was increased from Rs. 3,00,000.00 to Rs. 3,50,000.00 but, however, all the provisions of the agreement dated 4th June, 1969 remained in full force and effect and by another supplemental agreement dated March 18, 1970 the limit was increased from Rs. 3,50,000.00 to Rs. 3,80,000.00 and all other provisions of the said agreement dated 4th June, 1969 remained in full force and effect. There was another supplementary agreement dated 28th of August, 1970 whereby the limit was increased to Rs. 4,00,000.00 on the same terms and conditions. By another agreement dated 3rd of May, 1972 the limit was increased to Rs. 5,00,000.00 on the same terms and conditions. On 26th of December, 1975 the limit was increased to Rs. 10,00,000.00 on the same terms and conditions as before save and except that the rate of interest was increased to 6% over the Reserve Bank of India minimum 15% per annum. The plaintiff granted overdraft and/or cash credit facilities up to the limit of Rs. 10,00,000.00. On 7th of July, 1976 by another agreement on same terms and conditions the said limit was increased to Rs. 16,00,000.00. The plaintiff granted overdraft and/or cash credit facilities up to the limit of Rs. 10,00,000.00. On 7th of July, 1976 by another agreement on same terms and conditions the said limit was increased to Rs. 16,00,000.00. By way of further security the first defendant on 7th of July, 1976 executed on demand a promissory note for Rs. 16,00,000.00. By a separate letter dated 7th of July, 1976 the first defendant agreed that the said promissory note was to stand and be regarded as continuing security and would be enforceable for any of the moneys which then and at any time in future became due and payable by the first defendant. On 7th of July, 1976 the first, second, third, fourth defendants jointly and severally guaranteed repayment to the plaintiff on demand all sums of moneys and liabilities upto a sum of Rs. 60,00,000.00. This guarantee was given in respect of the amount for which the suit has been filed and also in respect of other accounts. By agreement dated 8th of June, 1977 overdraft facilities on the same terms and conditions was increased to Rs. 20,00,000.00 and by way of further security the first defendant on 8th of June, 1977 on demand executed a promissory note for Rs 20,00,000.00 on the same terms and conditions. 4. By several writings the first defendant acknowledged indebtedness to the Bank. The plaintiff's case is that by those writings the said account was stated for the respective sums. In paragraph 23 the plaintiff has stated that the plaintiff has other claim in respect of other accounts and also the plaintiff has other claim in respect of the title deeds which have been deposited by the defendants for certain immoveable properties by way of co lateral and additional securities situate outside the jurisdiction of this court and the plaintiff also pleaded that the plaintiff has some other cause of action against the defendant, as such the plaintiff craved leave under Order 2 Rule 2 of the Civil Procedure Code. 5. Thereafter the plaintiff took out an application in this suit for appointment of receiver, injunction and other consequential reliefs. While the said application was being heard the present application has been taken out by the defendants. 5. Thereafter the plaintiff took out an application in this suit for appointment of receiver, injunction and other consequential reliefs. While the said application was being heard the present application has been taken out by the defendants. In the earlier application an order was made by this Court directing Talbot and Company to assess and value the securities lying hypothecated to the Bank and according to the valuation of Talbot and Company the total goods secured to the bank would amount to Rs.37,69.400. The defendant on their own accord had the valuation made and done by Talbot and Company in respect of immoveable properties mortgaged to the Bank and according to such valuation of Talbot and Company the valuation of the said properties would be Rs. 37,69,400. 6. Mr. Milon Benerjee with Mr. Sudipta Sarkar appeared for the defendants Nos. 1 and 4 and submitted that the claim against defendants are arising out of three different accounts. On overdraft and cash credit account there is due Rs. 21,64.366.04. On account of bill purchase amount there is due Rs. 3,07,000/- and in respect of the bill discount account there is due to the extent Rs. 19,57,152.42. In total the defendants are liable to pay to the Bank a sum of Rs. 44,28,980.58. According to the petitioners, on diverse dates between June 1969 and October 1976 the defendants nos. 1 to 4 created mortgage by deposit of title deeds. From the letters dated 6th June 1969, 15th of December, 1969 and October 19, 1976 it would appear that the mortgage of securities was in respect of advance by way of fluctating overdraft. According to the petitioners no secuity was required in respect of accounts relating to bill purchase and bill discounting, under IDBI Scheme as the entire money was advanced against bills and those bills are covered by guarantee of the bankers of the purchasers. Moreover, according to the petitioners, certain title deeds were deposited much earlier than commencement of the bill discounting claim in 1971 and so far as the bill purchase account is concerned the same is duly secured by mortgage of machinery. According to the petitioners, the plaintiff Bank is fully secured in respect of that amount; as such there was no question of further securing the same by giving security of immoveable properties to the plaintiff Bank valued at about Rs. 3,00,000.00. According to the petitioners, the plaintiff Bank is fully secured in respect of that amount; as such there was no question of further securing the same by giving security of immoveable properties to the plaintiff Bank valued at about Rs. 3,00,000.00. According to the petitioner, the present suit by the Bank is a suit for mortgage money which is secured by immoveable properties. According to the petitioners, the plaintiff Bank- with the object of harrassing the petitioners instead of filing a mortgage suit in the appropriate District Court has filed the present suit with the sole motive of ruining the petitioner's business; as a result they will be deprived of the right of redemption and will be completely at a loss; as such the plaintiff Bank should be directed to proceed against securities of the immoveable properties and to exhaust the same first. Therefore this application has been made and prayed for exercise of Court's discretion under section 68(2) of the Transfer of Property Act. 1882. The plaintiff Bank has not abandoned and/or surrendered their security against immoveable properties. From the letter dated 6th June, 1969 it would appear that by way of additional securities for the advance of Rs. 3,00,000.00, equitable mortgage over land at Dum Dum was secured. From the letter dated 15th of December, 1969 it would appear that for the additional overdraft facilities of Rs. 50,000.00. Sm. Manada Sundari Saha was called upon by the Bank for the purposes of making over formal title deeds in favour of the Bank in respect of the increased overdraft facilities. From the document dated 19th of October, 1976 it would appear that the title deeds relating to property at Dum Dum and Acharyya Prafulla Chandra Road have been referred to. 7. Mr. Milan Banerjee referred to Sections 58,67,68 (1) (a) and 68(2) of the Transfer of Property Act. He further referred to cases reported in AIR 1934 calcutta 73; AIR 1953 Calcutta 208. He submitted that by obtaining leave under Order 2 Rule 2, the plaintiff had made it abundantly clear that the plaintiff wishes to file a separate suit in respect of the same cause of action; as such obtained leave under Order 2 Rule 2. If the plaintiff's cause of action was different so far the mort8age properties are concerned then no leave under Order 2 Rule 2 was required to be taken from this Court. If the plaintiff's cause of action was different so far the mort8age properties are concerned then no leave under Order 2 Rule 2 was required to be taken from this Court. The title deeds, according to him, were deposited by way of additional security and in respect of the same loan. As such recovery of the loan is nothing but the recovery of the mortgage money. 8. Mr. Subrata Roychowdhury appeared with Dr. Tapas Banerjee for the Bank and submitted that this application is wholly misconceived as the present suit filed by the Bank is not for recovery of mortgage money but the plaintiff has filed the suit for recovery of money which is secured by hypothecation of machinery, book debts, stock-in-trade, etc. There is also a personal covenant of the defendants to pay the said money. The plaintiff's case is also based on promissory notes, guarantee, various acknowledgements made by the defendants and also on accounts stated as pleaded in the plaint. Paragraph 23 of the plaint, according to Mr. Roychowdhury only indicates that the plaintiff is entitled to file a suit for mortgage in respect of the colateral security and this particular cause of action as made out in the present plaint is completely unrelated to or unconnected with the equitable mortgage created by the defendants in Bank's favour. The plaintiff has filed the suit for recovery of the money qua mortgage as such this is not a suit for recovery for the sum on mortgage money but the cause of action is independent and is unconnected with mortgage. As such this application must be dismissed with costs. 9. He further urged, that the promissory notes, deed of hypothecation acknowledgements are independent of the mortgages as such the question of recovery of mortgage money under Section 68(1) does not arise. According to Mr. Roychowdhury, the case reported in AIR 1953 Calcutta 208 applies and the principles enumerated in the said decision will cover the present case and the case reported in AIR 1934 Calcutta 73 is no longer good law and in that respect he craved reference to a passage from Mulla on Civil Procedure Code under Order 34 and as such the observation made by the learned Judges in the case reported in AIR 1934 Calcutta 73 is not correct. He further referred to Section 96 of the Transfer of Property Act and submitted that the present suit is not a suit for recovery of the mortgage money. 10. From the facts stated above, it would appear that this Court will have to decide two questions; first of all whether the present suit has been filed by the plaintiff for recovery of mortgage money and secondly whether the discretion given under Section 68(2) should be exercised by this Court in the present case. Under Section 58 mortgage money includes principal money along with interest for which payment is secured by the mortgages. From the documents that have been aunexed to the affidavits it would appear that the money advanced by the Bank has been secured and/or protected by the hypothecation of moveables, book debts, etc., by execution of promissory notes and also by deposits of title deeds and the language have been used by Bank that by way of further security these measures have been taken by the Bank. 11. In the case reported in AIR 1934 Calcutta 73, a Division Bench of this Court presided over by Mukherji and Mallik JJ. had to consider the liability of a mortgagor and also had to consider whether the plaintiff could ask for money decree in such a case and after giving all the consideration the learned Judges came to the conclusion that the question must be answered in the negative. Although a creditor, who takes a security in the shape of a mortgage, cannot be regarded as having forgone such rights as a creditor has under the general law. But by construing the provisions of the Transfer of Property Act Their Lordships came to the conclusion that the general rights of the creditor are to some extent abrogated by the said Act. According to the ratio of that case creditor's right to a ask for money decree is very much restricted by the provisions of Section 68 of the Act and an action for debt is not the usual remedy of a mortagee in India. Their Lordships quoted a passage from Sir Rashbehary Ghose on Mortgage, Edition 4. Volume 1, Pages 76 to 77. The mortgagee is not bound to sue for both the remedies of personal covenant and to proceed against the mortgage property. The pledgee must ordinarily obtain a decree directing a sale to make his security available. Their Lordships quoted a passage from Sir Rashbehary Ghose on Mortgage, Edition 4. Volume 1, Pages 76 to 77. The mortgagee is not bound to sue for both the remedies of personal covenant and to proceed against the mortgage property. The pledgee must ordinarily obtain a decree directing a sale to make his security available. Section 68 gives the right which the Courts have long recognised on equitable grounds. According to the ratio of the said decision, a mortgagee in respect of a simple mortgage in view of the provisions of Section 68 of the Transfer of property Act has no cause of action for a relief in the shape of a decree for money independently of the mortgage and apart from his right as mortgagee and it is not open to him to ignore the mortgage and fall back on the debt. In the said case, on facts, the money was advanced and the consideration money was made-up of various items and the plaint was not framed for recovery of the debt nor was the mortgage pleaded as evidence of admission or acknowledgment of the said liability. On the plaint, as framed, the suit could not be possibly treated as a suit for recovery of the said items. So there the plaintiff did not sue on the personal covenant. 12. In the case reported in (2) AIR 1953 Calcutta 208 (Nityananda v. R.C.B. Cinema Limiled) P.B. Mukharji, J., held that under the combined operation of Section 96 and Section 58(b) of the Transfer of Property Act an equitable mortgage must be held to be a mortgage where the mortgagor binds himself personally to pay the mortgage money. In an equitable mortgage the mortgagee has the right to sue for the mortgage money within the meaning of section 68(1) (a). In order to stay the proceedings in a suit under Section 68(2) the suit must be a suit by the mortgagee for the mortgage money. According to P.B. Mukharji J. Section 68(1) indicates that the right to sue mentioned in that section is a right which belongs to the mortgagee only in his capacity as a mortgagee and not in a totally different capacity. According to P.B. Mukharji J. Section 68(1) indicates that the right to sue mentioned in that section is a right which belongs to the mortgagee only in his capacity as a mortgagee and not in a totally different capacity. But if the mortgagor chooses to create a personal liability by independent transaction like a promissory note a cheque or other independent engagement completely dissociated from the mortgage, then he does not come within the scope of Section 68(1) (a) or within the principle that security should be called up first before personal liability is enforced. In such a case as the personal liability to repay a loan arises independently of any existing mortgage the suit would not be considered to be a suit by the mortgagee for mortgage money and in such a case the defendant would not be entitled to ask for stay of the suit under section 68(2). In the said case the plaintiff filed a suit on a promissory note for Rs. 40,000.00 and in paragraph 3 of the plaint the plaintiff also pleaded that the defendant created an equitable mortgage by deposit of title deed8 in respect of a cinema house situated outside the jurisdiction and asked for leave under Order 2 Rule 2 to file a separate suit to enforce the mortgage if and when necessary. The defendants filed a written statement denying execution of the promissory note and also denied the fact of deposit of title deeds. According to the ratio of the said judgment, an equitable mortgage by deposit of-title deeds is placed on a similar footing as a simple mortgage and the rights and liabilities of a mortgagor and a mortgagee under such an equitable mortgage are the same as far as may be as those under a simple mortgage and that is plain from the clear provisions of Section 96 of the Transfer of Property Act; as such a mortgagor under an equitable mortgage has a personal liability to pay the mortgage money. In order to avail of the provision of Section 68(2) the suit must be a suit by the mortgagee for the mortgage money and not in a suit in which the mortgagee prosecutes qua mortgage for the recovery of the mortgage money. In order to avail of the provision of Section 68(2) the suit must be a suit by the mortgagee for the mortgage money and not in a suit in which the mortgagee prosecutes qua mortgage for the recovery of the mortgage money. His Lordship came to the conclusion that the right to' sue mentioned in that section is the right which belongs to the mortgagee only in his capacity as a mortgagee and not in a totally different capacity such as a payee of a promissory note in this case and according to His Lordship the mortgage money is the money secured by mortgage and not what is secured by promissory note. The personal liability to pay money must be discovered to arise on the mortgage itself and not dehors the mortgage. His Lordship also came to the conclusion that suit on a promissory note is a distinct cause of action, independent of and apart from mortgage and although an equitable mortgage created a personal liability the suit was not filed for enforcement of that. In such a case if the personal liability on a loan arises independently of any existing mortgage then the suit is not by the mortgagee for mortgage money and the learned Judge came to the conclusion in that case that the argument that the consideration of the promissory note is the same as the consideration for the mortgage money could not in his view make any difference in the construction of Section 68 of the Transfer of Property Act. His Lordship also stated that the principle behind the statutory provision is the law's reluctance to make the mortgagor personally liable so long as his security is there to answer for the debt. But if the mortgagor chooses to create a personal liability by independent transaction like a promissory note, a cheque or other independent engagement completely dissociated from the mortgage then he does not come within the meaning of Section 68(1) (a) of the Transfer of Property Act or under the principle that security should be called up first before personal liability is enforced. By executing these documents he really indicates to the creditor that he brings an independent personal liability to answer the loan apart from the mortgage. Although the consideration is the same for the promissory note and the original loan they are regarded in law as distinct and separate causes of action. By executing these documents he really indicates to the creditor that he brings an independent personal liability to answer the loan apart from the mortgage. Although the consideration is the same for the promissory note and the original loan they are regarded in law as distinct and separate causes of action. His Lordship came to the conclusion that the discretion as envisaged under section 68 (2) must be exercised on cogent grounds and not arbitrarily. 13. In the case reported in AIR 1934 Calcutta 73 a Division Bench of this High Court had to consider the liability of a mortgagor under a mortgage and Their Lordships held that "a mortgagee in respect of a simple mortgage in view of the provisions of Section 68 of the Transfer of Property Act has no cause of action for relief in the shape of a decree for money independently of the mortgage apart from his right's as a mortgagee". Their Lordships further held that "an action for debt is not the usual remedy of a mortgagee in India and where none of the clauses (b), (c) or (d) of Section 68 is satisfied the mortgagee can only sue on his right ex-contract upon the covenant under Clause (a) and it is not open to him to ignore the mortg1ge and fall back on the debt". Their Lordship further held that "if the debt was to be sued upon, it was a different item in respect of which liability was to be pleaded and proved". In that case before Their Lordship the question did not arise for determination whether a creditor can sue for the debt independent of the mortgage resting his claim on documents unconnected with the mortgage. The case before me is completely different from the facts in that case. In the present case the plaintiff has filed a suit not in respect of the mortgage but has relied and based its claim on promissory notes, deed of hypothecation, acknowledgements, accounts stated etc. As such on facts alone the said case can be distinguished from the present one before me. The case cited in AIR 1934 Calcutta dealt with the right of a mortgagee who filed his claim on the mortgage and also for a personal decree. In the present case the plaintiff has filed the suit dehors the mortgagee. As such on facts alone the said case can be distinguished from the present one before me. The case cited in AIR 1934 Calcutta dealt with the right of a mortgagee who filed his claim on the mortgage and also for a personal decree. In the present case the plaintiff has filed the suit dehors the mortgagee. In the present case the defendants have chosen to create a personal liability by independent transaction by executing promissory notes, deed of hypothecation, acknowledgement, which are completely dissociated from the mortgage. By entering into an independent contract for debt as evidenced by promissory notes, deed of hypothecation and acknowledgement letters, the defendants have indicated to the plaintiff Bank that thereby the defendants have created an independent personal liability to answer the loan apart from the mortgage where not only the right to enforce against the mortgage property is there but also a personal liability to pay for the same. Here the plaintiff's case is based on independent and distinct cause of action which is independent from the mortgage. Although the consideration for the promissory note, deed of hypothecation, acknowledgments, accounts stated are the same for the mortgage but in law they are distinct and separate causes of action. Even assuming, if the plaintiff fails in this suit the plaintiff would not be debarred from bringing an action on the mortgage in a separate suit. Although the consideration is the same for the promissory note, deed of hypothecation etc. as also a mortgage the defendants cannot take advantage of section 68(2) and say that the plaintiff must exhaust the mortgage security first before enforcing its right on the documents mentioned above. Although the consideration is the same for the promissory note, deed of hypothecation etc. as also a mortgage the defendants cannot take advantage of section 68(2) and say that the plaintiff must exhaust the mortgage security first before enforcing its right on the documents mentioned above. Under the deed of hypothecation and/ or overdraft agreement the defendants agreed that all goods wherever stored or of any goods in transit or 5hipments, documents of title, negotiable instrument, policies of insurance, present and future book debts, outstanding bills, money receivable by the Company by hypothecating and/or charging and by way of first charge as security for the payment to the Bank on demand of balance at any time and the defendant also agreed to furnish to the Bank by way of additional security to the satisfaction of the Bank and the defendant also agreed to hand over immediate possession of the goods and the Bank under the agreement is entitled at all times as the absolute owner and without any notice of demand to the company to enter any place where the charged goods are, inspect, value, sale by public auction or by private contract or otherwise dispose of or deal with in any manner or any part of the charged goods, book debts and realise its money. From the promissory notes executed it would appear that the defendants have undertaken an independent liability to pay for the same. From the deed of guarantee it would also appear that a separate liability has been undertaken to pay the Bank's dues. It would also appear from the petition that the defendant no. 5 has filed a suit against the first defendant being Suit No. 514 of 1977 and had obtained a consent decree and one of the terms is that in default of payment by the first defendant in terms of the consent decree and in execution of the said decree a receiver be appointed over the aforesaid securities of the plaintiff. According to plaintiff the defendant no. 5 has no prior claim over the securities held by the plaintiff; on the contrary the plaintiff claims prior right of anybody else including the 5th defendant. According to plaintiff the defendant no. 5 has no prior claim over the securities held by the plaintiff; on the contrary the plaintiff claims prior right of anybody else including the 5th defendant. The plaintiff in this suit is apprehensive that the securities hypothecated in favour of the plaintiff are at danger; as such necessary order should be passed in favour of the plaintiff on its application for injunction and/or for a receiver. According to the plaintiff, it was the duty of the defendants to keep the plaintiff informed of all the circumstances relating to the said suit. 14. B.B. Mitra on Transfer of Property Act, 13th Edition at page 647 says that "for the purpose of stay of the proceedings under subsection (2) the suit must be a suit by the mortgagee for the mortgage money in his capacity as a mortgagee. If the mortgagor creates a personal liability by independent transaction, such as, promissory notes, or other independent transaction completely dissociated from the mortgage then he does not come within the scope of sub-section 1 (a) of the Section and the defendant cannot pray for stay of the suit under sub-section (2). Mulla on Transfer of Property Act, 6th Edition at page 485 observes that "although the Calcutta High Court held that when a mortgagee is suing on the covenant under section 68(a) it is not open to ignore the mortgage. This is not a correct statement of law before the amending Act of 1929". 15. In view of the facts and the law as stated above, I am of the opinion and hold that the petitioners are not entitled to get the benefit under section 68 of the discretion of this Court of staying the suit and/or all proceedings thereunder. The plaintiff has filed this suit not for recovery of the mortgage money; as such I dismiss this application with costs. There will be a stay of operation of order for a forthight.