A suit for foreclosure must be filed in a court having territorial jurisdiction over the mortgaged property. However, in cases where a mortgage may not be enforceable, but money can be realised on the basis of the original transaction, the court should give an option to the plaintiff to proceed with the suit for realisation of money only, after deleting the prayer for foreclosure.

JUDGMENT :

P.K. Misra, J. - The plaintiff has filed this appeal against the order of the trial Court holding that the suit was not maintainable and directing return of the plaint for presentation before the proper Court having territorial jurisdiction.

2. The appellant filed T.M.S. No. 89 of 1992 in the Court of the Subordinate Judge, Rairangpur, with the following prayers :

"26. The plaintiff therefore prays :

(a) that a decree for Rs. 1,59,214.32 (Rupees one lakh fiftynine thousand two hundred fourteen and paise thirty-two only) may be passed in favour of the plaintiff and jointly and severally together pendente lite and future interest. On the said sum of Rs. 86,135.79 (Rupees eighty-six thousand one hundred thirty-five and paise seventy-nine only) at the rate of 15.5%per annum and on Rs. 73,078,53 (Rupees Seventy three thousand seventy-eight and paise fifty-three only) at the rate of 17.25% per annum with quarterly rest.

(b) that on failure of the defendants to pay the decretal dues within the time stipulated in the decree by the Honourable Court, a decree may be passed for the sell of the mortgaged properties in Schedule 'B' of the plaint and the sale proceeds of the same may be ordered to be adjusted towards payment of the decretal dues and in case of the said sale proceeds are found insufficient or the mortgaged properties or any part or portion thereof are not available for sale, the other properties of the defendants be ordered to be sold for realisation of the decretal dues.

(c) that the cost of the suit be decreed in favour of the plaintiff

And

(d) any other relief or reliefs to which the plaintiff is entitled in law and enquiry may be also decreed in favour of the plaintiff."

3. Defendant No. 3 after appearing in the suit filed a petition to decide the question of territorial jurisdiction of the trial Court as a preliminary issue. It was contended by him that the suit being one for enforcement of the mortgage in respect of immovable property and the immovable property being admittedly situated outside the territorial jurisdiction of the trial Court, it had no jurisdiction to try the suit. The plaintiff-appellant, in opposition to such prayer, contended that defendants 1 and 3 were residing within the territorial jurisdiction O; the trial Court and the cause of action having arisen within the territorial jurisdiction, the suit had been rightly filed at Rairangpur.

4. The trial Court relying upon the provisions contained in Section 16(c) of the CPC (in short, the "C.P.C.") and the decision reported in Mrs. Rosy Joseph and Others Vs. Union Bank of India, Ernakulam Branch held that since the suit was one for foreclosure on the basis of a mortgage and since the property mortgaged was admittedly situated outside the territorial jurisdiction of Rairangpur Court, the suit was not maintainable in Rairangpur Court, the suit was not maintainable in Rairangpur Court and accordingly, it directed that the plaint should be returned to the plaintiff for presentation before the Court having territorial jurisdiction.

5. In this appeal, the learned counsel for the plaintiff-appellant has contended that though a suit for foreclosure can be filed before the Court having territorial jurisdiction over the mortgaged property, in the present case the plaintiff had also sued on the loan transaction and prayed for realisation of money and the prayer for realising the money by selling the mortgaged property was in addition to the main prayer. He has further submitted that in case it was found that relief under paragraph - 26 (b) of the plaint was not available to be granted because of lack of territorial jurisdiction, the plaintiff should have been given an opportunity to delete the said prayer, as the main prayer for realisation of money was entertainable by the trial Court. He has relied upon the decision reported in State Bank of India Vs. Sanjeev Malik and others, in support of such contention.

6. Section 16(c), C.P.C. relates to suits for foreclosur