PRAMOD JAMWAL Vs. BANK OF MAHARASHTRA NAGPUR

JUDGEMENT

(1.) 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 3-4-2008 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 j 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 25-6-2008 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 that application.