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2001 Supreme(Bom) 100
IN THE HIGH COURT OF BOMBAY
M.B. Vishwanath, President
Gautam R. Morarka.... Appellant.
And
State Bank of Mysore others.... Respondents.
MA-6 of 2001 (in IAs 2, 3 4 in OA-542 of 1997-DRT, Bangalore), decided on 6-2-2001.
The impleading of a deceased person by the bank was made in good faith and the suit against a dead person can be regularized under the proviso to sub-section (1) of section 21 of the Limitation Act if it is proved to the satisfaction of the Court that the mistake in impleading a dead person was made by the plaintiff in good faith.
Headnote:
Nullity - Impleading of Deceased Person - The court held that the impleading of a deceased person by the bank was made in good faith and the suit against a dead person can be regularized under the proviso to sub-section (1) of section 21 of the Limitation Act if it is proved to the satisfaction of the Court that the mistake in impleading a dead person was made by the plaintiff in good faith.
Fact of the Case:
The Legal Representative of the first defendant borrower challenged the order passed by the Debt Recovery Tribunal allowing the LRs of the deceased first defendant to be brought on record.
Finding of the Court:
The court found that the impleading of the deceased first defendant by the bank was made in good faith and the order passed by the Debt Recovery Tribunal was unexceptionable, thus dismissing the appeal.
Issues: Condonation of delay, setting aside the abatement, bringing the LRs of the deceased first defendant on record.
Ratio Decidendi: The court held that the impleading of a deceased person by the bank was made in good faith and the suit against a dead person can be regularized under the proviso to sub-section (1) of section 21 of the Limitation Act if it is proved to the satisfaction of the Court that the mistake in impleading a dead person was made by the plaintiff in good faith.
Final Decision: The appeal was dismissed with no costs.
2. The deceased first defendant had left behind him two sons who were the L.Rs. These two sons were sought to be brought on record under the L.R. application. It should be mentioned here clearly that one of the L.Rs. had already been impleaded in the OA as defendant No. 3 in his capacity as one of the borrowers.
3. The D.R.T. was concerned with only the appellant here brought on record as another LR.
4. The first respondent Bank filed OA-542/1997 before the D.R.T., Bangalore against the deceased first defendant and four other defendants claiming about Rs. 98 lakhs odd.
5. The OA was filed before the D.R.T. on 10-1-1997. The Bank filed the IAs on 26-11-1998.
6. The first defendant died on 29-5-1995.
7. It is true that the first defendant was deceased even before filing of the OA by the Bank. The Bank has given adequate reasons for not filing the LR application in time. The learned PO has accepted the reasons given by the Bank.
8. It is stoutly contended by the learned Counsel for the appellant LR that the OA filed against the dead person was a nullity. This position in law is not universal. It is subject to circumstances and facts of each case.
9. Despite best efforts the Bank was not aware that the first defendant was dead at the time of filing the OA. Another LR had already been impleaded as defendant No. 3 in the OA. This person did not bring it to the notice of the Bank or the Tribunal that his father was dead.
10. As an eminent English Judge has observed, "technicalities are there to help the dispensation of justice and not to clog the wheels of justice."
11. The learned Counsel for the appellant LR relied on the law laid down by the Hon'ble Supreme Court in 1993(4) S.C. Cases Page 41 (Karuppaswamy others v. C. Ramamurthy)1. This authority of the Hon'ble Supreme Court deals with two situations- (i) Where the party has failed to show that the suit was filed against a dead person by mistake, (ii) It also deals with the situation where it is proved to the satisfaction that the mistake in impleading a dead person was made by the party (plaintiff) in good faith.
12. This authority, in my opinion, helps the Bank and not the appellant. The Supreme Court has been pleased to hold that a suit against a dead person can be regularised under proviso to sub-section (1) of section 21 of the Limitation Act if it is proved to the satisfaction of the Court that mistake in impleading a dead person was made by the plaintiff in good faith. The Supreme Court has been pleased to hold that the Court's satisfaction alone breathes life in the suit.
13. There is enough material on record to show that the impleading of a dead person (1st defendant) by the Bank was made in good faith. The authority relied on by the appellant fits like a glove to the facts of the case.
14. Except the first defendant who was dead on the date of the OA filed by the Bank the other defendants were brought on record. The Hon'ble Delhi High Court has been pleased to hold in A.I.R. 1972 Delhi 253, (Smt. Kailash Kapoor v. Naresh Chandra Misra)2, that where all the known legal representatives have been brought on record, the action cannot be said to abate if subsequently it comes to be known that there were some more legal representatives who were not brought on record for want of knowledge about them.
15. The Supreme Court has been pleased to hold in A.I.R. 1985 S.C.
