IN

IN

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

THE HIGH COURT OF JUDICATURE AT BOMBAY

THE HIGH COURT OF JUDICATURE AT BOMBAY

ORDINARY

ORDINARY

ORDINARY ORIGINAL CIVIL JURISDICTION

ORIGINAL CIVIL JURISDICTION

ORIGINAL CIVIL JURISDICTION

CHAMBER

CHAMBER

CHAMBER SUMMONS NO.1672 OF 2006

SUMMONS NO.1672 OF 2006

SUMMONS NO.1672 OF 2006

IN

IN

IN

SUIT

SUIT

SUIT NO.1757 OF 2005

NO.1757 OF 2005

NO.1757 OF 2005

Bank of India

...Plaintiff

Versus

Mr.Narendra Vishnu Bandekar & Anr.

...Defendants

And

Mrs.Aruna Narendra Bandekar & Anr.

..Respondents

---

Shri Ashish Kamat i/by V.Deshpande & Co for the

Plaintiff.

Shri H.V.Chande for the Defendants.

---

CORAM

CORAM

CORAM : ABHAY S.OKA, J.

: ABHAY S.OKA, J.

: ABHAY S.OKA, J.

DATED

DATED

DATED : JULY 25, 2007.

: JULY 25, 2007.

: JULY 25, 2007.

P.C.:

P.C.:

P.C.:

1.

This Chamber Summons has been taken out by the

original Plaintiff for amendment of the plaint. The

prayer is for impleading the Respondents in the chamber

summons as the Defendant No.1(a) and 1(b) and for adding

consequential averments in paragraph Nos.13 and 14 of

the plaint.

2.

The submission of the learned counsel for the

Plaintiff in support of chamber summons is that on the

date of institution of the suit the Plaintiff was not

aware that the first Defendant was no more. He pointed

... 2 ...

out the averments made in the affidavit in support of

the chamber summons in which it is stated that when a

notice of motion for the interim relief in suit was

moved on 15th September, 2005, the learned counsel

appearing for the second Defendant informed the Court

that the first Defendant had expired. He submitted that

on the basis of the letter dated 06th December, 2006

sent by the learned Advocate for the second Defendant,

the present chamber summons is taken out for impleading

parties. He placed reliance on certain decisions of

this Court and submitted that as the Plaintiff was not

aware that the first Defendant was already dead on the

date of the institution of the suit, the legal

representatives can be permitted to be impleaded even by

taking recourse to Rule 10 of Order I of the Code of

Civil Procedure, 1908. The learned counsel for the

Defendants submitted that the suit itself was nullity as

the same was filed against a dead person. He also

placed reliance on another decision of this Court and

submitted that even an order passed permitting the

Plaintiff to substitute the first Defendant by his legal

representatives will be nullity.

3.

I have carefully considered the submissions made

by the learned counsel appearing for the parties. The

suit filed by the Plaintiff is for a money decree and

... 3 ...

for various other reliefs. According to the case of the

Plaintiff, the first and second Defendants had obtained

a term loan from the Plaintiff Bank under the "Star

Suvidha Scheme". According to the Plaintiff the third

Defendant guaranteed the repayment of the amount by the

first and second Defendants. It must be stated here

that the second Defendant is the son of the first

Defendant.

4.

It will be necessary to refer to the affidavit

in support of the chamber summons. In paragraph No.8 of

the affidavit it is stated that when the notice of

motion for interim relief in the suit was moved on or

about 15th September, 2001, the learned counsel for the

second Defendant informed the Court that the first

Defendant had expired. In paragraph No.9 it is stated

that though the Plaintiff was aware that the second

Defendant is one of the legal heirs of the first

Defendant, the Plaintiff could not ascertain names of

other legal representatives. In a fresh notice of

motion for interim relief taken out by the