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2001 DIGILAW 113 (KAR)

SREE VISALAM CHIT FUNDS LIMITED v. S. SUGUNA

2001-02-05

CHANDRASHEKARAIAH

body2001
CHANDRASHEKARAIAH, J. ( 1 ) THE plaintiff has filed the Suit O. S. 1383/87 for recovery of money due to it on the basis of chit transaction. The case of the plaintiff is that the value of the chit is Rs. 50,000/- and it commenced on 9-12-1992. The defendants resisted the suit. On the basis of pleadings the trial Court has framed certain issues. Ultimately, the trial Court dismissed the suit holding that the trial Court has no jurisdiction to try the suit and the suit filed is also not maintainable as it is barred under Sec. 64 (3) of the Chit Funds Act, 1982 (for short 'the Act' ). ( 2 ) IN this appeal, the point that arises for consideration is :-"whether the trial Court is justified in dismissing the suit on the ground of jurisdiction and also maintainability ?"it is an admitted fact that the defendant had deposited certain title deeds as security for the amount due by him to the plaintiff. The properties which are subject-matter of title deeds are admittedly situated in the State of Tamil Nadu. Now the question for consideration is whether the bare suit for recovery of money without bringing the mortgage property for sale in order to recover the money due under the mortgage is maintainable ? ( 3 ) UNDER Order 2, Rule 2, CPC, no doubt, if a person is entitled to more than one relief on the same cause of action may sue for all or any of such reliefs; but if he omits; except with the leave of the Court to sue for all such reliefs, he shall not sue for the reliefs so omitted. If the money is borrowed by creating equitable mortgage, no doubt it is at the option of the creditor to sue for recovery of money by omitting the relief of recovery of money on the basis of mortgage or he may with the leave of the Court may reserve his right to sue on the basis of the mortgage by filing a simple suit for recovery of money. In the absence of obtaining the leave of the Court as required under Order 2, Rule 2, CPC, the creditor cannot file a second suit for recovery of money on the basis of mortgage that is to say the second suit in such cases is barred; but not the first suit. In the absence of obtaining the leave of the Court as required under Order 2, Rule 2, CPC, the creditor cannot file a second suit for recovery of money on the basis of mortgage that is to say the second suit in such cases is barred; but not the first suit. Therefore, the trial Court was not right in dismissing the suit on the ground of jurisdiction. ( 4 ) THE trial Court dismissed the suit on the ground of maintainability relying upon Sec. 64 (3) of the Act. This finding is also not correct as it has been done without notice to Sec. 85 of the Act. From the plaint averments, it is seen that the chit was commenced on 9-12-1982. Section 85 of the Act, reads as follows :"anything in this Act shall apply in respect of - (a) Any chit started before the commencement of this Act. " ( 5 ) THE Chit Funds Act, came into force in the State of Karnataka with effect from 2-1-1984. If that is so, the suit filed on the basis of the chit which commenced in the year 1982 is not barred. Therefore, the trial Court has also committed an error in holding that the suit is not maintainable in law. Hence, the following order :-THE appeal is allowed;the impugned judgment and decree passed by the Court below is set aside. The matter is remitted to the trial Court to dispose of the suit in accordance with law after due notice to the parties. --- *** --- .