The main legal point established in the judgment is that the Court's jurisdiction to grant relief based on the mortgaged property and the requirement for seeking leave under O. 2, R. 2 of the Civil Procedure Code were central to the decision.

( 1 ) THIS is an application by the plaintiff under O. 2, R. 2 of the Code of Civil Procedure (for short civil Procedure Code ), seeking leave to omit the relief for enforcement of its mortgage rights in respect of Flat No. 3, Datta Apart- ments Khar, Bombay (for short the mort- gaged property) from the instant suit and to institute appropriate proceedings in the Court of competent jurisdiction to enforce its said rights in respect of the said property. It has also been prayed in this application that necessary leave be granted to the plaintiff to omit including in this suit, the claim of the plaintiff under the various bank guarantees issued by the plaintiff for and on behalf of defendant No. 1 in favour of various parties, and to institute a suit for recovery of its dues if and when necessary, in the event of the bank guarantees being invoked and the payment of amount claimed therein.

( 2 ) IT is stated in this application that defendant No. 1 had equitably mortgaged the said property with intent to create security for the dues of defendant No. 1 and that this charge was got registered in the office of the Registrar of Companies of Delhi and Har- yana. New Delhi. It is alleged that since the mortgaged property is situated in Bombay, therefore, the plaintiff cannot claim the relief under the mortgage against the said defend- ant in the suit in this Court as this Court does not have the jurisdiction to grant such a relief. It is also alleged that, that can only be done by filing appropriate proceedings in the Court of competent jurisdiction in Bombay where the said mortgaged property is situated and that the plaintiff intended to do so.

( 3 ) IN the application it is also stated that the plaintiff had issued various bank guaran- tees for and on behalf of defendant No. 1 in favour of various parties; some of which are still alive; and the plaintiff bank has not received any demand till date invoking them. In the event of such guarantees being invoked, the plaintiff would have to make payment under the same. Consequently, the plaintiff bank will also become entitled to recover those amounts from the defendants. It is, however, pointed out that the cause of action in respect of the bank guarantees had not accrued till the filing of the application and, therefore, no claim in respect thereof was includible in this Suit.

( 4 ) THE plaintiff has categorically stated in this application that it was not intentionally giving up its rights under the mortgage and the claims under the bank guarantee. In effect, the plaintiff/ applicant is seeking leave under O. 2, R. 2, sub-rule (3), Civil Procedure Code to enforce its rights under the mortgage and its entitle- ment to the relief as a mortgagee.

( 5 ) AT this stage a few facts material for the disposal of this application may be noticed. The plaintiff filed the above suit on 6-3-90 for the recovery of Rs. 1,17,90,025. 86 p. One of the prayers in the plaint is that leave under O. 2, R. 2 of Civil Procedure Code may also be granted to institute a suit or such other proceedings in appropriate Court having jurisdiction over the mortgaged property. On 26-3-90 this application under O. 2, R. 2, Civil Procedure Code was filed. The suit as well as this and other applications came up for hearing for the first time on 29-3- 90. It may also be noticed that in paragraph 34 of the plaint it has been stated that the mortgaged property was equitably mortgaged by deposit of title deeds and that the rights under the mortgage were not being claimed because this Court did not have jurisdiction to grant the relief under the said mortgage. The plaintiff also reserved its rights to move the Court having jurisdiction over the mortgaged property, to enforce their rights under the mortgage. The plaintiff has also undertaken to give due credit to the defendants of the amounts realised by them from the said property.

( 6 ) MR. Pramod Aggarwal, learned coun- sel for the plaintiff/applicant, argued in sup