R. C. LAHOTI ( 1 ) THIS order disposes of the plaintiffs application under Order 23 Rule 1 (3.) of the Civil Procedure Code seeking leave to withdraw part of its claim in the suit with the liberty to file a fresh suit as regards that claim before a competent court having jurisdiction at Gurgaon. ( 2 ) THE plaintiff bank filed this suit on 18. 7. 1984 impleading four defendants, all being the heirs of late Shri J. R. Malik. It is alleged in the plaint that cash credit account was opened with the plaintiff bank and loan facilities were sanctioned consequent to which the defendant owned a liability in an amount of Rs. 7,98,247. 37 on the date of the suit. Para 6 of the plaint also makes a mention of defendant No. 1 having created an equitable mortgage by deposit of title deeds of certain property situated at Gurgaon which belongs to M/s. Jaisa Tyres Pvt Ltd. A preliminary decree for redemption of mortgage was also prayed for. On 10. 10. 1985, the plaintiff moved an application (IA 6659/85) under Order 6 Rule 17 Civil Procedure Code read with Order 1 Rule 10civil Procedure Code seeking amendment in the plaint and also impleadment of M/s Jaisa Tyres Pvt Ltd as defendant in the suit. It was pointed out that to act as security for that suit amount M/s. Jaisa Tyres Pvt Ltd had also executed an equitable mortgage by deposit of title deeds of certain property belonging to that company situated at Gurgaon. ( 3 ) THE prayer for amendment was opposed on behalf of the defendant by submitting that the suit for redemption of mortgage in respect of the property situated at Gurgaon, beyond the territorial jurisdiction of this Court, could not lie before the Court at Delhi and hence the court could not permit the amendment This Court vide order dated 5. 9. 89 allowed the plaintiffs application for amendment in part to the extent to which the amendment proposed to clarify the factual averments against the defendants already on record. The prayer for amendment by which it proposed to implead M/s Jaisa Tyres Pvt Ltd and additional facts as regards the defendant proposed to be newly added was refused. 9. 89 allowed the plaintiffs application for amendment in part to the extent to which the amendment proposed to clarify the factual averments against the defendants already on record. The prayer for amendment by which it proposed to implead M/s Jaisa Tyres Pvt Ltd and additional facts as regards the defendant proposed to be newly added was refused. The court referred to Section 16 (C) of the Civil Procedure Code which provides suit relating to mortgage of immoveable property being instituted in the court within the local limits of whose jurisdiction the property is situated. ( 4 ) TO the extent to which the order dated 5. 9. 89 declined the plaintiffs prayer for amendment, it was challenged by filing an appeal before the Division Bench. Vide order dated 29. 10. 1991, the Division Bench dismissed the appeal. During the course of its order the Division Bench observed : " Since it has been held by the learned Single Judge that the Delhi Court has no jurisdiction with regard to the mortgaged property situated at Gurgaon, it was just and proper that the question of amendment of the plaint was not decided. Accordingly, we set aside the order of the learned single Judge granting amendment of the plaint with liberty to the State Bank of India to file a fresh application, in case the plaint is returned for presentation to the appropriate court at Gurgaon. However it would be open to the appellant to file an application for amendment of the plaint so as to implead defendant No. 5 in Gurgaon Court and the Gurgaon court will decide that application on merits. " ( 5 ) THE plaintiff bank is faced with a dilemma, its prayer for amendment has been refused to the extent to which the plaintiff has sought for enforcement of securities by way of mortgage against the four defendants already on record and suit would not lie nor can it be tried by this court for want of territorial jurisdiction; M/s Jaisa Tyres Pvt Ltd, whose property is also alleged by the plaintiff bank to have been mortgaged for recovery of the suit amount is not before the Court. In so far as the enforcement of mortgages is concerned, it cannot be disputed that the mortgaged property being situated at Gurgaon it is only the court having jurisdiction at Gurgaon which would be competent to try. In so far as the enforcement of mortgages is concerned, it cannot be disputed that the mortgaged property being situated at Gurgaon it is only the court having jurisdiction at Gurgaon which would be competent to try. this suit. However, in so far as the enforcement of personal liability is concerned the suit filed before this court can be tried. The plaintiff bank, therefore, seeks withdrawal from this Court of such part of the claim as relates to enforcement of mortgage with liberty to institute a fresh suit before a court of competent jurisdiction. ( 6 ) THE learned counsel for the defendant has opposed the prayer for withdrawal by submitting that in view of the observations made by the Division Bench, nothing survives for adjudicafion before this Court and the only course open to the plaintiff is to have the plaint returned for presentation to proper court at Gurgaon and make an application for amendment of the plaint before that court so as to implead M/s Jaisa Tyres Pvt Ltd. The learned counsel for the plaintiff rejoined his submissions by submitting that the order of the Division Bench has not pre-empted the jurisdiction of this Court to permit withdrawal of part of the claim. , It is further submitted that this only would be an appropriate course to be adopted by the plaintiff inasmuch as if the plaint is returned and instituted afresh before a court at Gurgaon the plaintiff runs the risk of relief of personal decree against the defendant being held barred by limitation, though it is within limitation before this Court. ( 7 ) IN the opinion of this Court it will not be Sound exercise of discretionary jurisdiction conferred by Order 23 Rule 1 (3) Civil Procedure Code to permit the plaintiff to withdraw a part of the claim. In so far as the determination of monetary liability is concerned, the parties shall have to adduce practically the same evidence before two. fora. This court would determine the personal liability of four deferdants while the court at Gurgaon would determine the liability of the 5th defendant (four being common) additionally in respect of equitable mortgage created by the defendants. It will be conducive to speedy trial to have all the issues tried only once before one court, qua all the five defendants, which can only be done by a court at Gurgaon. It will be conducive to speedy trial to have all the issues tried only once before one court, qua all the five defendants, which can only be done by a court at Gurgaon. This would not cause any prejudice to any of the parties. In so far as the question of limitation is concerned the plaintiff can bank upon Section 14 of the Limitation Act and seek from the Gurgaon court exclusion of time lost in prosecuting the suit before this Court. This would also satisfy the spirit of observations made by the Division Bench. ( 8 ) THIS court is therefore of the opinion that the plaint should be returned for presentation to proper court. Intimation of this decision is given to the plaintiff as contemplated by Order 7 Rule 10a (1) Civil Procedure Code.