Writ Petition No.3743 of 2008

3rd April, 2009

Petitioner Counsel: Ms. R. A. WASNIK,Ms. KHADEKAR
Respondent Counsel: Mr. M. N. PHADKE,Mr. A. MADIWALE,Mr. JAISWAL

JUDGMENT

JUDGMENT :- Rule. Rule made returnable forthwith. With consent of the parties, the matter is taken up for final hearing immediately. Heard learned counsel for the parties. Perused the record.

2. Facts in brief are that respondent no.1-Bank of Maharashtra, had filed Special Civil Suit No.1261/1998 against four defendants. Defendant No.1 is borrower and other three defendants are guarantors. The present petitioner, who is defendant No.2, filed an application before the trial Court on 03.04.2008 pointing out that defendant No.3-Smt. Asha Khurana, who is mother-in-law of Sanjeev Ahuja, Proprietor of defendant No.1 and who was one of the guarantors, had expired pending the suit. He also disclosed that deceased defendant no.3 had left behind three daughters and a son, who are in occupation of her property and belongings at Kamptee Road, Nagpur. By the said application, defendant No.2 requested the trial Court to direct plaintiff-Bank to take steps to bring legal representatives of defendant no.3 on record. That application was opposed by the Bank on the ground that the plaintiff-Bank is not aware about death of defendant no.3 and unless authentic information from authenticate source regarding death of defendant no.3 comes on record, the plaintiff is unable to make application and, therefore, the question of passing appropriate orders does not arise. It was contended that the application filed by defendant no.2 is not tenable and should be dismissed with costs. After hearing the parties, trial Court passed the impugned order dated 25.06.2008 rejecting the application of defendant no.2 on the ground that no death certificate of defendant no.3 has been placed on record and that defendant no.3 is represented by an Advocate but the Advocate had not given any such information about death of defendant no.3 and in absence of any substantial proof, it is not proper to rely on statement of defendant no.2. Being aggrieved by that order, original defendant no.2 has preferred this petition.

3. After perusal of the objections taken by the Bank to the said application and the reasons given by the trial Court for rejecting that application, it appears that very strange stand has been taken by the Bank and astonishing reasons are given by the trial Court while rejecting that application. The plaintiff is a Nationalised Bank and has filed the suit for recovery of the loan amount of Rs.8,00,000/- plus. Loan was taken by defendant no.1. Defendant no.3 was mother-in-law of Sanjeev Ahuja, the Proprietor of defendant no.1 and defendant no.4 is father of Sanjeev Ahuja. The petitioner, is the only outsider guarantor. Naturally, it will be in the interest of defendant no.2 to point out to the Court that one of the guarantors, who held a huge property and from whom the decretal amount could be recovered, has died and in the interest of the bank as well as in the interest of defendant no.2, legal representatives of the deceased defendant no.3 should be brought on record. So that recovery could be made from the estate of deceased, which might have come to the hands of her legal heirs. It was not necessary for defendant no.2 to submit the death certificate or legal proof for the purpose that defendant no.3 has died. This was only an information on the basis of which the Bank could make enquiry and take appropriate action. Instead of doing that, the Bank took objection and prayed for rejection of the that application.

4. Learned counsel for respondent no.1-Bank contended that as per Order 22, Rule 10-A of the Code of Civil Procedure it is the responsibility of the Advocate, appearing for the deceased defendant, to inform the Court about death and only after that the plaintiff-Bank can take steps or make an application to bring legal representatives on record. It is also very strange argument. In fact prior to the Code of Civil Procedure Amendment Act, 1976, which came into force on 01.02.1977, there was no such provision and responsibility was of the plaintiff to take steps to bring legal representatives of deceased defendant on record within time and that time limit is 90 days, as per the Limitation Act. If legal representatives of deceased defendant are not brought on record within limitation, the suit would automatically stand abated to that extent. Thereafter, the plaintiff may make an application for setting aside abatement within a period of 60 days as per the provisions of the Limitation Act. Many a times it happens that the plaintiff, for one or the other reason, does not come to know about death of the defendant and in the result for a long period, the legal representatives are not brought on record, which results in serious complications. To avoid such complications, the responsibility was put on the Advocate of the deceased defendant to bring that fact to the notice of the Court and notice of the plaintiff so that proper steps could be taken. It does not mean that the plaintiff cannot or should not take steps to bring legal representatives unless information of death is given by the Advocate of the deceased, inspite of such knowledge from some other source.

5. Mr. Amit Madiwale, learned counsel holding for Mr. A. S. Jaiswal, Advocate for respondent no.4, makes statement that Mr. Jaiswal, Advocate was previously appearing for defendant nos.1, 3 and 4. However, he has already withdrawn his power on behalf of respondent nos.1 and 3 and now he appears only for respondent no.4. In view of this, it appears that no Advocate was appearing for the deceased defendant no.3 before the trial Court. Taking into consideration the stand taken by the Advocate, it appears that the Bank does not want to take any steps to bring legal representatives of the deceased defendant no.3 unless Advocate for defendant no.3 makes statement about death. In fact, basic responsibility of the plaintiff is to take steps to bring legal representatives on record as soon as it comes to know about the death of one of the defendants. In the present case, while the plaintiff-Bank did not take any steps to bring legal representatives of deceased defendant no.3, defendant no.2 made an application and thus informed the Bank about death of defendant no.3. Naturally, this was not only to protect the interest of defendant no.2 but also to protect interest of plaintiff, which is a Nationalised Bank. But unfortunately the plaintiff does not want to take any action on that basis merely because the information was not given by the Lawyer of the deceased defendant no.3 or death certificate was not actually produced by defendant no.2. In fact, if application for bringing legal representatives on record is made beyond the period of limitation, it would be the responsibility of plaintiff to explain the delay. Instead of taking into consideration this aspect, the application was opposed and the learned trial Court also rejected that application. In fact, learned trial Court should have directed the plaintiff-Bank to take note of information given by defendant no.2.

6. For the aforesaid reasons, the writ petition is allowed. The plaintiff-Bank is hereby directed to take note of death of defendant no.3 as per application given by defendant no.2.

Rule made absolute. No order as to costs.

Petition allowed.