JUDGMENT :

Heard Mr. L.H. Lianhrima, learned senior counsel appearing on behalf of the appellant and Mr. T. Lalnunsiama, learned counsel for the respondent no.1. Respondent no.2 is the proforma respondent.

2. This is an appeal for setting aside the Judgment and order and Decree passed by the Senior Civil Judge, Lunglei in Civil Suit No.22/2010 dated 16.03.2016.

3. The brief facts leading to the filing of the present appeal is that the defendant no.1/appellant approached the plaintiff/respondent no.1 by submitting his application for Small Scale Composite Term Loan on 11.03.2002 for a sum of Rs. 9,50,000/-for his business of stone works. As a result, the defendant no.1/appellant was granted a loan of Rs. 9,50,000/-on 01-03-2004 under the terms and conditions laid down therein. The defendant no.1/appellant mortgaged his LSC No. 89 of 1974 for the purpose of bringing equitable mortgage of the loan and it was taken as security against the said loan amount. .Further, the defendant no. 2/respondent no.2 stood as guarantor and executed the Guarantee Agreement in favour of the defendant no.1/appellant on the same date itself. The cause of action arose when the defendant no.1/appellant failed to repay the loan and the plaintiff/respondent no.1 approached the Learned Court below by filing a Civil Suit under order XXXIV CPC and order XXXIV Rule 6 CPC foreclosure and sale of the mortgaged property covered by LSC No.89 of 1974 belonging to the appellant/defendant No.1, in order to recover the outstanding amount of loan Rs.6,74,991/-due to the plaintiff on the month of May 2008 along with interest @13% p.a effecting from May 2008 till realization.

4. The case was registered as Civil Suit No 22 of 2010 and the suit was contested by the Appellant/Defendant no.1, who submitted his Written Statement to the effect, that the suit is not maintainable in its present form and style, it is barred by the limitation, laches, waiver and acquiescence, that the plaint was not properly stamped as requisite court fees have not been deposited along with the plaint and the defendant no.1 prayed for dismissal of the suit. From the submissions made by both the parties, the learned Lower Court framed the following issues:-

i). Whether the suit is maintainable in its present form and style or not.

ii). Whether the suit is barred by law of limitation or not.

iii). Whether the plaintiff has cause of action to file the suit against the defendants or not.

iv). Whether the plaintiff and the defendants had executed a valid mortgaged deed or not. If not, whether the defendants are liable for the default of the plaintiff or not.

v) Whether the plaintiff is entitled to the relief claimed or not. If so, to what extent.

The learned lower court decided all the issues in favour of the plaintiff/respondent no.1 and passed the impugned Judgment and Order and Decree dated 16.03.2016, hence this appeal.

5. Mr. L.H. Lianhrima, learned senior counsel submits that from the nature of the case, this is actually a Money Suit and the respondents should have approached the Court within 3 (three) years from the alleged date of cause of action. Thus, the case is barred by limitation under Article 27 of the Limitation Act and should have been dismissed outright. The learned senior counsel has relied on the Judgment of the Apex Court in the case of Foreshore Cooperative Housing Society Limited Vs. Praveen D. Desai and Others reported in (2015) 6 SCC 412.

6. The learned Sr. Counsel also submits that no cash was given to the appellant in this case, but instead, an incomplete Stone Crusher was given to the appellant by the respondent, which could not be used and is lying un-used till date. No action was taken by the respondent in spite of the report made to the Bank Manager that the machine was not workable. However, this fact was not mentioned in the written statement submitted by the counsel for the defendant/appellant for reasons best known only to the counsel. The defendant no.1/appellant had then fil