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Sharad D. Khadepau and anr. Vs. Dena Bank and ors. - Court Judgment

LegalCrystal Citation
CourtDRAT Mumbai
Decided On
Judge
AppellantSharad D. Khadepau and anr.
RespondentDena Bank and ors.
Excerpt:
.....officer allowed the application made by the respondent no.1 bank for taking on record heirs and legal representatives of the deceased defendant nos. 2 and 4. being aggrieved, the present appeal is filed by the heirs and legal representatives of the deceased defendant no.2 dhansukhlal panalai khadepau, who had expired on 17th august, 2001.2. few relevant facts, which are required to be stated are as follows: the respondent no.1 dena bank has filed suit in the high court of judicature at bombay being suit no. 1140 of 1998 against six defendants praying joint and several decree against them for an aggregate sum of rs. 76,23,255.app. with interest etc. and for enforcement of their securities. the said suit came to be transferred to the d.r.t-iii, mumbai upon establishment of the d.r.ts as.....
Judgment:
1. This miscellaneous appeal is filed by the appellants/ original defendant Nos. 2 (a) and 2 (b) being aggrieved by the order dated 3rd December, 2003 passed by the learned Presiding Officer of Debts Recovery Tribunal-III, Mumbai on exhibit Nos. 16 and 23 in Original Application No. 382 of 200 1. By the impugned order, the learned Presiding Officer allowed the application made by the respondent No.1 bank for taking on record heirs and legal representatives of the deceased defendant Nos. 2 and 4. Being aggrieved, the present appeal is filed by the heirs and legal representatives of the deceased defendant No.2 Dhansukhlal PanalaI Khadepau, who had expired on 17th August, 2001.

2. Few relevant facts, which are required to be stated are as follows: The respondent No.1 Dena Bank has filed suit in the High Court of Judicature at Bombay being suit No. 1140 of 1998 against six defendants praying joint and several decree against them for an aggregate sum of Rs. 76,23,255.app. with interest etc. and for enforcement of their securities. The said suit came to be transferred to the D.R.T-III, Mumbai upon establishment of the D.R.Ts as per provisions of the RDDBFI Act, 1993 and was re-numbered as Original Application No. 382 of 2001.

3. It appears that during pendency of the Original Application, the original defendant No.2 Dhansukhlal Panalal Khadepau expired on 17th August, 2001. The appellant No.1 Sharad Khadepaul defendant No.2 (a) by his letter dated 24th August, 2001 informed the Assistant Registrar of the D.R.T.-III, Mumbai about the demise of his father Dhansukhlal Panalal Khadepau. Copy of the medical certificate also was sent along with this letter. Request was made by the appellant No.1 in this letter to drop name of his father from further proceedings in the above mentioned Original Application. Roznama dated 24th August, 2001 also reveals that this letter sent by the appellant No.1 was received by the D.R.T. and at that time advocate for the respondent bank was also present. Thereafter, an application was made by the bank on 11th February, 2003 praying for bringing heirs and legal representatives of the deceased original defendant No.2 Dhansukhlal Panala Khadepau and original defendant No.4 Chandravadan Hiralal Choksey on record. The bank conceded that there was considerable delay in filing the said application and also prayed for condonation of delay.

It was submitted by the bank in the said application that the delay was caused due to non-availability of the names of all the heirs and legal representatives of the deceased original defendant Nos. 2 and 4. The bank had made several efforts to find out names of the heirs and legal representatives of the deceased defendants but the same could not be found out. It was further submitted by the bank that the defendant No.6, the power of attorney holder of the deceased defendants was requested several times to give names of the heirs and legal representatives of the deceased defendants, but the defendant No.6 did not comply with the said request. It was further submitted that an application was made by the defendant No.6 -power of attorney holder for dismissal of the Original Application on the ground of abatement of the Original Application due to death of original defendant Nos. 2 and 4. It was further contended that since the said power of attorney holder did not pay any heed to the request made by the applicant bank and did not furnish names of the heirs and legal representatives of the deceased defendants, the bank had no alternative, but to make an application before the D.R.T. for bringing unknown heirs and legal representatives of the deceased defendants on record. It was further submitted that on 27th November, 2002 all these applications came up for hearing including the application of the power of attorney holder to dismiss the Original Application on the ground that it had abated.

It was further submitted that after hearing both the sides, the learned Presiding Officer rejected the application made by the defendant No.6 and directed him to furnish names of the heirs and legal representatives of the deceased defendants and that, it was only thereafter, on 20th January, 2003, the defendant No. 61 power of attorney holder submitted names of the legal heirs of the deceased defendants and thereafter, an application was made by the bank on 11th February, 2003. It was further averred by the bank in the said application that abatement of the suit against the deceased defendant Nos. 2 and 4 was required to be set aside on the ground that, the applicant bank was a public financial institution, that huge public fund was involved in the matter and the grave and irreparable loss would be caused to the applicant bank if the said application was not allowed and heirs and legal representatives of the deceased defendants were not brought on record.

This application came to be opposed by the appellants. It was pointed out that the date of knowledge of death of the deceased defendant No.2 was 24th August, 2001, that since heirs were not brought on record, the suit had abated on 15th November, 2001 and that time to set aside the abatement also had expired on 14th January, 2002. Giving this chronology of dates, it was contended by the appellants that the application made by the bank on 11th February, 2003 was thus time barred and therefore had to be dismissed.

Another objection taken by the appellants was that the said application taken out by the bank was not accompanied with a specific prayer to set aside the abatement and that, the said application was only to bring on record heirs and legal representatives of the deceased defendant Nos. 2 and 4.

4. The learned Presiding Officer after hearing both the sides and after going through the record, allowed the said application. He observed that public institution like a bank should not be treated at par with the individuals and that liberal approach had to be taken while considering application made by public institution so as to avoid loss to the public. He further observed that in the instant case, at the most liability of the heirs would be to the extent of shares which they had inherited from the deceased and they were not liable for the whole amount and therefore, they were at liberty to take such defence in their written statement, even though they were added as party.

Observing this, he allowed the application made by the bank for bringing heirs and legal representatives of the deceased defendant Nos.

2 and 4 on record.

5. I have heard Mr. Umesh Shetty for the appellants and Mr. Rajesh K.S.for the respondent No.1 bank. I have gone through the proceedings including the impugned order and in my view, the learned Presiding Officer has not committed any error as such in allowing the said application made by the bank. However, reasons given by him are not very satisfactory. In my view, reason or justification given by the applicant bank for condoning the delay in coming out with the said application, was satisfactory. It is pertinent to note that the bank has not denied date of knowledge of the death of the deceased defendant No.2. The bank has also not denied that the appellant No.1 wrote letter to the Tribunal informing about death of his father and their advocate was present at that time. Reason given by the bank for making application belatedly was that they wrote repeatedly to the defendant No.6 who was power- of attorney holder of the deceased defendants to furnish names of the heirs and legal representatives of the deceased defendants, but there was no response from the said power of attorney holder. He responded only to the direction given by the Tribunal itself on 27th November, 2002 and thereafter the said power of attorney holder on 20th January, 2003 furnished the names of the heirs and legal representatives of the deceased defendant Nos. 2 and 4. When this was the chronology of events, it could not be said that the bank's application dated 11th February, 2003 was belatedly made. It has to be said that the application was made within reasonable time and it was made within one month from the date of furnishing names of heirs and legal representatives of the deceased defendant Nos. 2 and 4. Thus, the delay was satisfactorily explained. It is pertinent to note that no affidavit whatsoever was filed by the defendant No. 6/power of attorney holder to counter averments made by the bank in their application dated 11th March, 2003, wherein the applicant bank explained the reason for coming out with an application after considerable time.

6. Another objection taken by the appellants was that the said application taken out by the bank was not accompanied by any application for setting aside the abatement of the Original Application. Mr. Umesh Shetty, the learned Counsel appearing for the appellants relied upon the judgment in the case of Ulhas Vasudeo Falari v. Anandibai Venkatesh Sawant reported in 2001(3) All. M.R. 210. In this case, the High Court has observed that dismissal of suit as having abated was legal as legal heirs were not brought on record within 90 days of death of the plaintiff and there was no application for setting aside the abatement within two months thereafter and no sufficient cause was also shown.

In this matter, the original plaintiff expired on 19th December, 1996 and heirs of the original plaintiff were not brought on record within 90 days from the date of her death. An application made by the heirs and legal representatives of the deceased plaintiff was simpliciter for condonation of delay for bringing heirs and legal representatives of the deceased plaintiff on record and there was no application for setting aside the abatement. As such, the said suit had automatically abated as per amended provisions of C.P.C. On this background, it was observed while dismissing the appeal of the heirs and legal representatives of the original plaintiff, that neither the reason given for condoning the delay was satisfactory nor there was any application made for setting aside abatement within the period of two months from the abatement.

It has to be stated that the above mentioned judgment of the Bombay High Court dated 23rd November, 2000 is no more good law in view of the Supreme Court Judgment in the case of Mithailal Dalsanagar Singh v.Annabai Deuram Kini Supreme Court has observed that prayer for bringing legal representatives on record without specifically praying for setting aside of abatement can be construed as a prayer for setting aside abatement. The Supreme Court has further observed that prayer for setting aside abatement and dismissal consequent upon abatement has to be considered liberally. It will be proper and useful to reproduce the relevant para 8 of this judgment, which reads as follows: 8. Inasmuch as the abatement results in denial of hearing on the merits of the case, the provision of abatement has to be construed strictly. On the other hand, the prayer for setting aside an abatement and the dismissal consequent upon an abatement, have to be considered liberally. A simple prayer for bringing the legal representatives on record without specifically praying for setting aside of an abatement may in substance be construed as a prayer for setting aside abatement. So also a prayer for setting aside abatement as regard one of the plaintiffs can be construed as a prayer for setting aside the abatement of the suit in its entirety, Abatement of suit for failure to move an application for bringing the legal representatives on record within the prescribed period of limitation is automatic and a specific order dismissing the suit as abated is not called for. Once the suit has abated as a matter of law, though there may not have been passed on record a specific order dismissing the suit as abated, yet the legal representatives proposing to be brought on record or any other applicant proposing to bring the legal representatives of the deceased party on record would seek the setting aside of an abatement. A prayer for bringing the legal representatives on record, if allowed, would have the effect of setting aside the abtatement as the relief of setting aside abatement though not asked for in so many words is in effect being actually asked for and is necessarily implied. Too technical or pedantic an approach in such cases is not call for.

7. In the present case at hand, it cannot be said that there was negligence, deliberate inaction or so "The Courts have to adopt a justice oriented approach dictated by the upper most consideration that ordinarily a litigant ought not to be denied an opportunity of having a lis determined on merits unless he has, by gross negligence, deliberate inaction or something akin to misconduct, disentitled himself from seeking the indulgence of the Court...." Something akin to misconduct, which can be attributed to the respondent bank and which would disentitle t bank from seeking indulgence of the Court/Tribunal in the application bringing heirs and legal representatives of the deceased defendant Nos2 and 4 on record. As already pointed out, the reason given by the ban that though repeated requests were made to the defendant No.6 power of attorney holder, he did not furnish the names and furnished the names only after the Tribunal gave direction to the said power of attorney holder on 27th November, 2002 and that the bank ultimately was furnished w those names only on 20th January, 2003 whereupon the application question was made on 11th February, 2003 within one month's time fr the date on which the bank came to know names of the heirs and l~ representatives of the deceased defendant Nos. 2 and 4.

8. Recourse can also be taken to another observation made by Supreme Court in the case of Mithailal Dalsanagar Singh (supra),which as follows: The legal representatives being brought on record at any sl of the proceedings enures for the benefit of the entire proceeding 9. In the present case at hand, indeed huge amount is involved which is public money. To that extent, therefore, observation made by the learned Presiding Officer in the impugned order that liberal approach has to be taken while considering such application to avoid loss to the public, may be correct, but in my view, there was more solid and concrete reason for allowing the application made by the bank, which I have discussed above. Therefore, I find no merit in this appeal filed by the appellants, who are heirs and legal representatives of the deceased defendant No.2 Dhansukhlal Panalal Khadepau. The appeal therefore, fails. Accordingly, following order is passed: Miscellaneous appeal No.6 of 2004 is dismissed. In view of this, miscellaneous application No. 640 of 2003 does not survive and is disposed off accordingly.


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