BANK OF BARODA Vs. M/S THAPAR TRADERS

JUDGEMENT

(1.) I.A. 1243/91. The application of the plaintiff, in which he sought that the abatement, if any against defendant No. 3 be set aside inter alia on the grounds that defendant No. 3, Shri Joginder Lal died on 19th Oct., 1990. Knowledge of his death came to the notice of the plaintiff-Bank on 22nd Jan., 1999. Immediately there after the application for bringing the LRs. of the said defendant was filed on 25th Jan., 1990 and thereafter, on filing of the reply by the defendants, the present application was filed in order to avoid any technical objection.

(2.) The facts of the case are that the plaintiff bank filed a suit for recovery against M/s. Thapar Traders, of which Shri Ravinder Kumar Thapar, defendant No. 2 is the sole proprietor and Shri Joginder Lal, defendant No. 3 is the guarantor. The notice of the suit was issued to the defendants and they were duly served. All the three defendants were represented by Mr. G.L. Rawal, Advocate. They filed their written statement on 23rd March, 1987. The written statement was filed and in the written statement, counter-claim was also filed by the defendants against the plaintiff. The pleadings were complete and the issues were trained. On 23rd Aug., 1990, an order was passed that the counter claim be registered as a second suit and written statement to the said counter claim be filed by the plaintiff. The case was thereafter adjourned to 1st Nov., 1990. As per the averment of the plaintiff, the defendants did not disclose about the death of defendant No. 3. It is only on 22nd Jan., 1991 that knowledge was acquired by the plaintiff and hence the application. Along with this application, the plaintiff has also filed an application for condonation of delay indicating the circumstances for delay in moving this application.

(3.) This application has been contested by the defendants on the ground that the plaintiffs were negligent in moving this application. The abatement had already taken place against defendant No. 3. Even otherwise, the plaintiffs have not come to the Court with clean hands.