The limitation period for a mortgage suit under Art.62 of the Limitation Act runs only from the date of demand made by the mortgagee.

The plaintiff is the appellant. The suit for recovery of a sum of Rs.22,160 alleged to be due on a mortgage deed dated 11. 1963 executed by the first defendant (first respondent herein), has been dismissed on the ground that the suit is barred by limitation. The subsequent mortgagee has been impleaded as the second defendant-second respondent herein. Second respondent has remained exparte and the appeal is being contested by the first defendant-first respondent.

2. As said above, the mortgage is dated 11. 1963. The period for redemption fixed therein is one year i.e., till 11. 1964. The suit has been filed on 211. 1978. In the plaint it is stated that the plaintiff bona fide believed that the first defendant/debtor was entitled to the benefits of the Debt Relief Ordinances and Acts and therefore 3 years, 7 months and 15 days shall be excluded while computing the period of 12 years and if thus computed the suit is in time.

3. It was contended by the first defendant that the plea that the plaintiff bona fide believed that the first defendant was a debtor entitled to the benefits of the Debt Relief Act is not true and therefore, no question of excluding 3 years, 7 months and 15 days arises and hence the suit having been filed beyond 12 years from the date fixed for redemption, i.e. 11. 1964 the suit is barred by limitation.

4. The trial Court, accepting the case of the first defendant and disbelieving the plaintiff’s plea that he bona fide believed that the defendant was entitled to the benefits of the Debt Relief Acts, held that the suit is clearly barred by limitation, and dismissed the suit.

5. The only point that arises for consideration in this appeal is whether the finding of the trial Court that the suit is barred by limitation is correct. Mr.N.Palaniappan, learned counsel for the appellant/plaintiff contends that the suit has been filed well within 12years prescribed under the relevant Art.62 of the Limitation Act and it is not necessary to consider whether the plaintiff bona fide believed that the defendant was entitled to the benefit of the Debt Relief Acts.

6. The learned counsel contends that a close reading of the mortgage deed Ex.A-1 shows that the first defendant shall pay interest at 12 per cent per annum every month without default, and on the expiry of the period fixed for redemption he shall pay the principal amount, and in case he fails to pay the monthly interest or the principal amount as stated above, from the date of default he would pay an additional interest of Rs.1.12 paise for every Rs.100 per month along with the principal when the plaintiff demands for payment. According to the learned counsel, as per these terms, until the time the plaintiff makes a demand no period of limitation runs and only when the demand is made from that date only the period of limitation shall be computed, and in this case the plaintiff has made a demand for the first time only under Ex.A-5 notice, dated 29. 1977,and the period of limitation shall be computed only from that date, and thus computed the suit is well within 12 years and therefore the suit is in time. In support of this contention, the learned counsel relies on a Division Bench decision of this Court in Nettakaruppa Goundan v. Kumaraswami Goundan and others, 8 M.L.J. 167: I.L.R. 22 Mad 20. The facts in that case are quite identical with the facts in our case and therein considering the old Art.132 of the Limitation Act which corresponds to Art.62 of the new Act, it was held that the limitation would run only from the date of demand by the mortgagee. It was observed that:

“As observed in Hanmantram Sadhuram Pity v. Bowles, I.L.R. 8 Bom. 561, the liability of the defendant being by the bond made dependent on a preceding demand, the defendant could not, till such demand was made, have considered the action as accruing against him since the default made in October, 1981.”

7. As against this, no contra ruling has been brought to my notice by the othe