A mortgage suit under Order 34 CPC can only be filed for the recovery of money secured by a mortgage. The plaint must disclose a cause of action for a mortgage suit, and the amount claimed must be secured by a mortgage.

( 1 ) THIS order will dispose of IA No. 6832/94 - by the defendant under Order 7 Rule 11 CPC for rejection of the plaint on the ground that averments in the plaint do not disclose cause of action giving rise to a triable issue for a mortgage suit under Order 34 CPC and IA No. 9038/94 by the plaintiff under Order 6 Rule 17 CPC for amendment of the plaint with a view to convert the mortgage suit into an ordinary suit for recovery of money with other consequential changes in the plaint.

( 2 ) THE facts relevant for the disposal of the applications are as under: The plaintiff bank filed the present mortgage suit for the recovery of sum of Rs. 18,26,014. 22 besides pendente lite and future interest, against the defendant, an Officer in its Establishment Branch at the Head Office, mainly on the pleas that: during the course of his employment with the plaintiff bank, while dealing with the staff s vouchers for travelling allowance, medical/hospitalisation bills etc. , he made certain interpolations in, the record of the bank and committed certain acts of forgery; opened fictitious accounts in the name of claimants; drew cheques in their names, got them encashed through fictitious accounts and embezzled a sum of Rs. 16,47,356. 29 paise, which amount it is claiming through this suit as its own money. (paras 1 to 6 of the plaint ). In the plaint it is also averred that the defendant had obtained housing and car loans from the plaintiff bank thereby adding to his liability towards the bank. It is claimed that the defendant created an equitable mortgage of his immovable property in favour of the bank as also hypothecated the car purchased by him with the bank and for the recovery of the amount so embezzled and loaned, the plaintiff has filed the present mortgage suit. Para 24 of the plaint, spelling out the cause of action for the suit read as follows:

"the cause of action arose on different dates of the loaning transaction starting from 1979 till the end. Such dates are not being reproduced herein with a view to avoid repetition which have been mentioned in the foregoing paragraphs. The cause of action finally arose on 22-1 -1994 when the plaintiff bank came to know all the evil designs and criminal acts committed by the defendant in defrauding the plaintiff bank with a colossal amount of money. The cause of action is still continuing and shall continue to arise till the defendant repays the entire outstandings to the plaintiff bank".

( 3 ) FROM the above, it is evident that the suit pertains to both the amounts, namely, the amount allegedly embezzled and the amount advanced as housing and car loans.

( 4 ) ON being served with the summons, the defendant filed his written statement. While denying any misappropriation he also raised preliminary objection regarding maintainability of the suit under Order 34 CPC, alleging that the documents mortgaging the property when housing loan was raised were being used deliberately and mischievously for the recovery of the amount, allegedly embezzled by the defendant, for which no mortgage was created in favour of the bank. However, before filing the written statement on 22nd September 1994, the defendant filed the afore-noted application under Order 7 Rule 11 CPC on 11th July 1994, wherein it is averred that on the grant of housing and car loans, the plaintiff bank itself started deducting monthly instalments from the salary of the defendant in accordance with the repayment schedule, fixed as per agreement for the aforesaid loans and the said regular deductions were continuing without any protest from the defendant even at the time when the present suit was filed and, thus, there was no occasion for the bank to file a suit for the recovery of the loaned amount. It is also pleaded that infact in the month of December 1993, the defendant himself wrote a letter to the plaintiff-bank seeking its permission to deposit the entire outstanding amount in respect of the said two loans but, instead of a