The court emphasized the importance of ascertaining the extent of inheritance of the defendants in the commercial entities before allowing an application under Order 7, Rule 11 of Civil Procedure Code.

ORDER/JUDGMENT : – Shri Narendrapal Singh Ruprah, learned counsel for the applicants.

Shri Utakarsh Agrawal, learned counsel for respondent No. 1 to 4.

This civil revision has been filed by the defendants being aggrieved of order dated 19-3-2021 passed by the learned 5th Civil Judge Class-I, Katni in RCS No. 12B/2020, Rajkumar Mehani and ors. vs. Anmol Refractories and Chemicals and ors., whereby an application under Order 7, Rule 11 of Civil Procedure Code filed on behalf of defendant No. 3 to 5 has been rejected on the ground that the suit has been filed against commercial entities namely Anmol Refractories and Chemicals so also Rahul Industries, who are respectively defendant No. 1 and 2 and not against a dead person. It is further held that it is a matter of evidence whether defendant No. 3, 4 and 5 are partners/managers/ proprietors of said firm or not.

2. Learned counsel for revision petitioner has placed reliance on the judgment of Supreme Court in case of Shabina Abraham and others vs. Collector of Central Excise and Customs, (2015) 10 SCC 770, wherein it is held that notice for recovery of excise duty is maintainable only against a living person who is chargeable with excise duty. The definition of a “person” under the General Clauses Act, 1897 in section 3(42), does not include legal representatives of persons who are since deceased, for the purpose of Excise Act.

Similarly reliance is placed on a judgment of the Supreme Court in the case of Rajendra Bajoria and ors. vs. Hemant Kumar Jalan and ors., 2021 SCC Online SC 764, wherein it is held that while considering an application under Order 7, Rule 11, Civil Procedure Code Court can also take into consideration not only the averments made in the plaint but also the averments made in the written statement because a clever drafting can create illusion of a cause of action, and a meaningful reading thereof would show that the pleadings are whether vexatious and meritless or not.

3. Learned counsel for the plaintiff/respondent on the other hand places reliance on judgment of Supreme Court in case of Liverpool and London S. P. and Lasson. Ltd. vs. M. V. Sea Success I and another, (2004) 9 SCC 512 and placing reliance on paragraph 150 to 153, it is submitted that “in all cases of preliminary objection, the test is to see whether any of the reliefs prayed for could be granted to the appellant if the averments made in the petition are proved to be true. For the purpose of considering a preliminary objection, the averments in the petition should be assumed to be true and the Court has to find out whether those averments disclose a cause of action or a triable issue as such. The Court cannot probe into the facts on the basis of the controversy raised in the counter.”

4. Reliance is also placed on a judgment of High Court of Judicature at Madras passed in S. A. No. 192/2011 and Madhya Pradesh No. 1/2011 on 15-12-2016, wherein placing reliance on the judgment of the Supreme Court in case of Kundan Lal Rallaram vs. Custodian, Evacuee Property, Bombay, AIR 1961 SC 1316(1), it is held that defendants are liable to discharge the loan borrowed by the deceased only to the extent of the property of the deceased, which has come to their hands and not been duly disposed of.

5. Reliance is also placed on the judgment of the Supreme Court in the case of Dahiben vs. Arvindbhai Kalyanji Bhanusali (Gajra) and others, (2020) 7 SCC 366, wherein the Supreme Court has held that “the test for exercising the power under Order 7, Rule 11 is that if the averments made in the plaint are taken in entirety, in conjunction with the documents relied upon, would the same result in a decree being passed.” and in case of Hardesh Ores (P) Ltd. vs. Hede and Co., (2007) 5 SCC 614, it is held that “it is not permissible to cull out a sentence or a passage, and to read it in isolation”.

6. Placing reliance on the aforesaid judgments, it is submitted that even otherwise defendants are only liable to the extent of