Gujarat High Court
Mr S M Sojatwala For vs 2 - 4 on 9 November, 2011
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
Gujarat High Court Case Information System
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SCA/17318/2003 10/ 10 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 17318 of 2003
For
Approval and Signature:
HONOURABLE
MR.JUSTICE J.B.PARDIWALA
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1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To
be referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
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SANJAYBHAI
JAGDISHBHAI MODI
Versus
DENA
BANK & 3
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Appearance
:
MR ASHOK K PADIA for
Petitioner(s) : 1, 1.2.1,1.2.2
MR S M SOJATWALA for Respondent(s)
: 1,
MRYATINRPATEL for Respondent(s) : 1,
RULE SERVED BY DS for
Respondent(s) : 2 - 4.
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CORAM
:
HONOURABLE
MR.JUSTICE J.B.PARDIWALA
Date
: 09/11/2011
ORAL
JUDGMENT
[1] By way of this petition under Article 227 of the Constitution, the petitioners have challenged the judgment and order dated 27.06.2003 passed by the Chamber Judge, Court No.7, Ahmedabad in Summary Suit No.5709 of 2001.
[2] The facts relevant for the purpose of deciding this petition can be summarized as under :-
[2.1] Dena Bank instituted Summary Suit No.5709 of 2001 against the defendants for recovery of Rs.9,73,357/-. The original defendant No.1 is the proprietary concern and defendant No.2 is the proprietor. Original defendants No.3 and 4 are the guarantors. It appears that at the relevant point of time when Summary Suit came to be filed, defendant No.4 late Jagdishbhai Ambalal Modi who had executed the deed of guarantee, had passed away. The Summary Suit came to be filed on 26.12.2001 whereas the record reveals that defendant No.4 -
original guarantor had passed on 19.04.2001.
[3] Having realized this original plaintiff requested for Chamber Summons for condonation of delay in bringing the legal heirs of original defendant No.4 on record. This application came to be allowed by the learned Chamber Judge vide order dated 27.06.2003. Aggrieved by this order, the present petition has been preferred.
[4] Learned counsel Mr.Ashok K. Padia for the petitioners vehemently submitted that the learned Chamber Judge has committed an error in allowing the application for condonation of delay and permitting legal heirs of original defendant No.4, the guarantor substituted. He would submit that Summary Suit was instituted against the dead person and, therefore, it would be a nullity. He would submit that the provision of Order 22 would apply only during the pendency of the suit and if prior to filing of the suit a person is dead then Order 22 would not apply. These contentions were raised before the learned Chamber Judge and the learned Chamber Judge negatived the contentions on the premise that the letter of guarantee at mark 3/6 executed by the defendant No.4 specifically provides that the guarantee shall be a continuing Guarantee and shall not be considered as wholly or partially satisfied or exhausted by any payments from time to time made to the Bank or any settlement of any account or by reason of the account being brought to a credit at any time or from time to time or its being drawn upto the full extent or exceeding the full extent of the limit from time to time and its being reduced or extinguished and thereafter reopened. The learned Chamber Judge also took note of the fact that the guarantee shall continue in force notwithstanding the discharge of the principal by operation of law or death of the guarantor or the death of any of the guarantors and shall cease only on payment of the amount guaranteed by the guarantor or any other guarantors. Learned Chamber Judge in paragraph No.5, thus, observed as under :-
"5. Thus, it is specifically agreed that the guarantee shall continue in force notwithstanding the death and estate of the deceased has been made liable. Therefore, when the cause of action survives and right to sue also survives qua defendant No.4 also, the legal representatives of the deceased defendant No.4 can be made party and the suit can be proceeded. There is no question of maintainability of the suit inasmuch as defendant No.1 to 3 are liable and the suit would be maintainable against them. However, so far as the defendant No.4 is concerned as stated by the plaintiff Bank, the plaintiff came to know only when the summons was served and when it was returned with the endorsement that the defendant No.4 has expired the plaintiff could have taken the steps. Therefore, having come to know about the death that he may have died earlier the heirs are required to be brought on record in view of the specific guarantee given by the defendant No.4 for the financial assistance granted by the plaintiff Bank to the defendant No.1 firm. There is no dispute that the defendant No.4 has died but his estate would remain liable which has already been agreed and accepted even in the Deed of Guarantee executed by the deceased defendant No.4 with the plaintiff and therefore the estate of defendant No.4 would remain liable and the legal heirs has to be joined as estate of the deceased defendant No.4 would be liable and would be subject to the commitment or the guarantee given the deceased defendant No.4."
[5] I do not find any merit in the contentions raised by learned counsel Mr.Padia. In one of the rulings of the Supreme Court in the case of Karuppaswamy and others Vs. C. Ramamurthy, reported in AIR 1993 SC 2324, the plaintiff unaware of the death of the defendant filed a suit against him and immediately on coming to know of his pre-suit death sought to substitute him by his legal representatives. The Apex Court allowed the application by invoking the proviso to Section 21 Clause (1) of Limitation Act. The Supreme Court in paragraph Nos.4, 5, 6, 10 and 11 held as under:-
4. Now under the Limitation Act, 1963, it is Section 21 which reads as follows: -
"21.
Effect of substituting or adding new plaintiff or defendant.- (1) Where after the institution of a suit, a new plaintiff on defendant is substituted or added, the suit shall, as regards him, be deemed to have been instituted when he was so made a party:
Provided that where the court is satisfied that the omission to include a new plaintiff or defendant was due to a mistake made in good faith it may direct that the suit as regards such plaintiff or defendant shall be deemed to have been instituted on any earlier date.(2)
Nothing in sub-section (1) shall apply to a case where a party is added or substituted owing to assignment or devolution of any interest during the pendency of a suit or where a plaintiff is made a defendant or a defendant is made a plaintiff."
5. A comparative reading of the proviso to sub-section (1) shows that its addition has made all the difference. It is also clear that the proviso has appeared to permit correction of errors which have been committed due to a mistake made in good faith but only when the court permits correction of such mistake. In that event its effect is not to begin from the date on which the application for the purpose was made, or from the date of permission but from the date of the suit, deeming it to have been correctly instituted on an earlier date than the date of making the application. The proviso to sub-sec. (1) of S. 21 of the. Act is obviously in line with the spirit and thought of some other provisions in Part III of the Act such as Section 14 providing exclusion of time of proceeding bona fide in court without jurisdiction, when computing the period of limitation for any suit, and S. 17(l) providing a different period of limitation starting when discovering a fraud or mistake instead of the commission of fraud or mistake. While invoking the beneficent proviso to sub-sec. (1) of S. 21 of the Act an averment that a mistake was made in good faith by impleading a dead defendant in the suit should be made and the court must on proof be satisfied that the motion to include the right defendant by substitution or addition was just and proper, the mistake having occurred in good faith. The court's satisfaction alone breaths life in the suit.
6. It is noteworthy that the trial Court did not attribute any neglect or contumacy to the conduct of the plaintiff-respondent. It was rather observed that the plaintiff could have known the date of the death of the first defendant only by the counter filed to IA 265 / 75. Normally, if he had known about the date of death of the defendant, he would have filed the suit in the first instance against his heirs and legal representatives. The trial Court has also opined that the plaintiff was ignorant as to such death and that is why he filed IA 265 / 75 under O. 22, R. 4 of C. P.C. The High Court too recorded a finding that there was nothing to show that the plaintiff was aware of the death of the first defendant and yet knowing well about it, he would persist in filing the suit against a dead person. In conclusion, the learned single Judge held that since plaintiff-respondent had taken prompt action it clearly showed that he had acted in good faith. Thus the High Court made out a case for invoking the proviso to sub-sec. (1) of S. 21 of the Act in favour of the plaintiff-respondent. Sequally, the High Court found no difficulty in allowing IA 785/75 permitting change of the provision whereunder IA 265 / 75 was filed and in allowing IA 265 / 75 ordering the suit against the heirs and legal representatives of defendant No. 1 to be dating back to 14-11-74, the date on which the plaint was originally presented.
10. In passing we think that it would be desirable to deal with some of the judicial precedents at least, relied upon by the respective learned counsel. Cases which arose under S. 22 of the old Indian Limitation Act, 1908, showing difference of opinion raging in the High Courts on the interpretation of the said-provision interplaying with the relevant provisions of the Code of Civil Procedure, need not be adverted to. Others arising after 1-1-1964, the day of the enforcement of the Limitation Act, 1963, are notewarthy. Cases reported in Suraj Bhan v. Balwan Singh, AIR 1972 Punj and Har 276; Lalit Kumar v. Jairam Dass, AIR 1984 Punj and Har 426 and Kisan Co-op. Sugar Factory Ltd. v. Rajendra Paper Mills, AIR 1984 All 143, are on their own facts in which the mistake pointed out was not found to have occurred in good faith. In contrast, in Rasetty Rajya lakshmamma v. Rajamuru Kanniah, AIR 1978 Andh Pra 279, the mistake was found to have occurred in good faith and the implement of the legal representatives was allowed even after the expiry of the limitation for filing suit. The institution of the suit was rightly held therein to be not void ab initio.
11. Not fully appreciating the ratio of the case in 1966 (Supp) SCR 188: AIR 1967 SC 278 a learned single Judge of the Orissa High Court in Cuttack Municipality v. Shyamsunder Behera, AIR 1977 Orissa 137, in our view, wrongly termed the suit to be a nullity, when the effect of its being nullified was removable through proviso to S. 21(l) of the Act, Khaja Begum v. Gulam Mohiuddin, AIR 1976 Andh Pra 65 is not a case under the proviso to sub-sec. (1) of S. 21 of the Act and thus requires no comment.
[6] Having heard learned counsel Mr.Ashok K. Padia for the petitioners. Having perused the record of the case and having gone through the impugned order passed by the learned Chamber Judge, I am of the view that no error muchless an error of law or jurisdiction can be said to have been committed warranting any interference under Article 227 of the Constitution.
[7] In above view of the matter, the petition stands rejected. Interim relief granted earlier stands vacated forthwith.
[ J.B.PARDIWALA, J. ] vijay Top