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TMI Blog2018 (12) TMI 1192X X X X Extracts X X X X X X X X Extracts X X X X ..... have to be construed as 12th November, 2018. The objection of limitation is, thus, rejected. The suit is thus decreed. - CS(OS) 378/2018 & I.A. 16982/2018 - - - Dated:- 19-12-2018 - PRATHIBA M. SINGH J. Plaintiff Through: Mr. Dinesh Garg Ms. Rachna Agrawal, Advocates Defendants Through: Ms. Shrishti Gupta Mr. Mohit Chaudhary, Advs. Prathiba M. Singh, J. (Oral) I.A. 16982/2018 (u/O XXXVII Rule 3(5) CPC) 1. The present suit under Order XXXVII has been filed by the Plaintiff - Mr. Sanjeev Jain (hereinafter, Plaintiff ), seeking recovery of principal amount of ₹ 3 crores and ₹ 84 lakhs as the interest component, levied from 1st April, 2016, till date of filing of the suit. The background is that the Plaintiff claims to have issued a loan to one Late Mr. Virendra Dhingra for a sum of ₹ 3 crores in May, 2015. The amounts were paid through banking channels in the following manner: 1) Rs.1,00,00,000/- Vide RTGS No. SBINR52015051915121123 dated 19.05.2015 drawn on State Bank of India, Green Park, New Delhi 2) Rs.50,00,000/- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... April, 2018. Before the said complaint could be registered and statement of the Plaintiff could be recorded, Mr. Dhingra passed away on 30th April, 2018. The complaint under Section 138 of the NI Act, was thus dismissed as the Respondent had passed away. 5. Thereafter, the Plaintiff has filed the present suit on 30th July, 2018 under Order XXXVII CPC, seeking recovery of the principal sum of ₹ 3 crores along with interest thereon. 6. The suit, was instituted against the legal heirs of Mr. Dhingra as he had already passed away by that time. Defendant No.1 Ms. Rajni Dhingra the wife of Mr. Virendra Dhingra, Defendant No.2 - Mr. Sanjeev Dhingra his son and Defendant No.-3 - Ms. Shivani Bhushan Bansal, his daughter are the Defendants in the suit. The Defendants have filed a leave to defend application under Order XXXVII which has been placed before this Court as the Plaintiff took an objection on the ground that the application was belated. 7. It is further submitted by Ld. counsel for the Plaintiff the he does not wish to file a reply to this application and is willing to make the submissions straight away. Submissions have been heard on behalf of Plaintiff by Mr. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eave no matter of doubt that Order XXXVII suit is maintainable against the LRs and the right to sue survives. 13. The relevant paras of Bank of India (supra) are set out herein below: 7. Order XXXVII does not exclude from its purview a suit where the heirs and legal representatives of a deceased are party defendants. Nor is there any protection under the Civil Procedure Code to the heirs and legal representatives of a deceased defendant from a decree being passed against them, provided of course, that the right to sue them survives. The protection which Section 52 of the Civil Procedure Code gives to the heirs and legal representatives of a defendant is a protection against the enforcement of a decree against them in execution. Under Section 52, where a decree is passed against a party as the legal representative of a deceased person and the decree is for the payment of money out of the property of the deceased, it may be executed by the attachment and sale of such property. The decree can be executed to the extent of the property of the deceased in his hands. This is a protection which is granted at the stage of execution. Hence even in a case where a decree is passed agai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d upon a decision of the Bombay High Court in Rajesh Steel Centre vs. Smt. Rashmi K. Agarwal Ors., 1986 Mah. L.J. 993. It is this order of the learned Single Judge which has been impugned before us. 4. We have heard learned Counsel for the parties and we are of the opinion that the learned Single Judge was not right in holding that the suit under Order 37 CPC would not lie. In an identical matter where the present appellants had instituted a suit, being Suit No.1507/94 under Order 37 against some other parties, the learned Single Judge has veered around to the view that such a suit would be maintainable against the heirs and legal representatives of the contracting party who have received his assets. The following are the observations of the learned Single Judge recorded in his order dated May 3,1995 with which we respectfully concur. 15. Thus, the above judgments are conclusive as to the maintainability of the present suit against the LRs of Late Mr. Virendra Dhingra. This Court however, is not going into the issue as to whether the said LRs in fact came into possession of any assets of Mr. Dhingra, or if the decree which may be passed in the present suit is executab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e question of limitation is not being gone into as the summons for judgments were served on the Defendants on 6th November, 2018 and first filing of the leave to defend was on 12th November, 2018. Though, there was a refiling of the said application, the date of filing of the said application would have to be construed as 12th November, 2018. The objection of limitation is, thus, rejected. 21. Under these circumstances, the suit is decreed for a principal sum of ₹ 3 crores. In the facts and circumstances of the present case, since the actual individual i.e. Late Mr. Dhingra, who availed of the loan has passed away and it is only his wife and children who are the Defendants in the present suit, interest is awarded @6% per annum from the date when the cheque was given i.e. 26th December, 2017. It is clarified that this Court has not gone into the issue as to whether the LRs or any of their assets can be attached or sold. The defences available to the LRs under Section 52 shall continue to be available in any execution of the present decree. 22. The suit is, accordingly, decreed in the above terms. There shall be no orders as to costs. All pending applications also stand d ..... X X X X Extracts X X X X X X X X Extracts X X X X
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