BANK OF BARODA Vs. SARDAR HARBANS SINGH

JUDGEMENT

(1.) THIS appeal has been directed against the judgment and order dated 4.2.2010 passed by the Presiding Officer of the DRT Jaipur whereby the application (O.A. No. 183/2002) filed under Section 31 -A of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (for short, the RDDBFI Act) and application for substitution of the legal representatives of the deceased defendant have been dismissed. The facts giving rise to this appeal, in brief, are that the appellant Bank had sanctioned on 1.10.1984 a loan to Sardar Harbans Singh for the purchase of a new Tata Diesel Chassis on the personal guarantee of Sardar Bakhtawar Singh and Sardar Harbhajan Singh (respondent Nos. 2 and 3 respectively herein). As the borrower failed to repay the loan despite demands, the Bank filed Civil Suit No. 65/1993 for its recovery before the Additional District and Sessions Judge No. 3, Jaipur City, Jaipur against the borrower and guarantors. The said suit proceeded ex parte and by judgment and order dated 7.8.1997 it was decreed as such against all the defendants for the recovery of the claimed amount together with pendente lite and future interest with the direction that the decree amount could be recovered by auction of the hypothecated goods and movable and immovable properties of the defendants. Since the defendant/JDs did not make any payment of the decretal amount, which had exceeded Rs. 10 lacs, therefore, the DH Bank filed application (O.A. No. 183/2002) under Section 31 -A of the RDDBFI Act before the DRT, Jaipur for the issuance of Recovery Certificate (RC) in accordance with the decree. Upon service of the notice of O.A. one of the guarantors, namely. Sardar Harbhajan Singh respondent No. 2 herein, filed an application before the Additional District and Sessions Judge. Jaipur on 18.9.2002 for setting aside the ex parte decree on the ground that the borrower Sardar Singh had died on 3.11.1995, i.e., during the pendency of the suit. The Bank thereafter moved an application before the DRT 5.12.2002 for substitution of the legal representatives of deceased Harbans Singh. The learned Tribunal below after hearing the parties and observing that since Harbans Singh had died during the pendency of the suit and his legal representatives were not brought on record, therefore, the decree passed against the dead person is a nullity, dismissed he O.A. and the substitution application both by the order impugned. Feeling aggrieved with that order the applicant Bank has filed the instant appeal.

(2.) MR . R.K. Salecha, learned Counsel appearing for the appellant has contended that despite sufficient service of summons none of the defendants had appeared before the Civil Court and the Bank could also not know about the death of Sardar Harbans Singh during the pendency of the suit as such substitution application could not be filed. He further contented that the amount of debt due was claimed not only from the borrower but also from the guarantors and since the right to sue against the guarantors had survived on the death of the borrower, therefore, the suit had not abated as per Order 22 Rule 1, CPC. He also contended that as the right to sue for the recovery of debt had survived against other defendants despite the death of one defendant -the application for substitution filed by the appellant under Order 22 Rule 4. CPC was entitled to be allowed and the learned Tribunal below has not applied the law correctly and has erred in dismissing that application.

(3.) MR . Yashpal Garg, learned Counsel for respondent No. 2, on the other hard, pointed out that the civil suit which was filed in 1992 was dismissed in default in 1994 and was later restored in 1998 and thereafter the summons were got served upon the defendants through substituted service, but before the restoration of the suit defendant No. 1 Sardar Harbans Singh had already died in 1995 and as such the ex parte decree passed by the Civil Court against a dead person is a nullity and the learned Tribunal below had rightly dismissed the O.A. filed under Section 31 -A of the RDDBFI Act as well as the substitution application. In support of his contention Mr. Garg has relied upon the judgments of the Supreme Court in Kiran Singh and Ors. v. Chaman Paswan and Ors., : AIR 1954 SC 340. Amba Bai & Ors. v. Gopal & Ors., : IV (2001) SLT 213 : AIR 2001 SC 2003 and Kishun alias Ram Kishun v. Bihari, : VI (2005) SLT 417: AIR 2005 SC 3799.