Author: Suhani Gupta
Student of University of Petroleum and Energy Studies, School of Law
The case of Syndicate Bank vs. A.P. Manjunath decided by Hon’ble Karnataka High Court on 26th November 1998, which tells that a deceased cannot be sued. A banking application was filed for bringing a legal representative of the dead. The application got dismissed, and finally, the petition was filed against the dismissal of the application. The judgment was given by Justice M. Chinnappa.
This case includes the Indian Contract Act, 1872- section 128, section 137, section 145. The first and the principal point in the surety’s obligation is that it is coextensive of the debtor's risk. When we state the coextensive of a debtor's risk, it implies surety obligation is as much as the debtor's risk. Means in this manner, on the off chance that the indebted person makes a default in the making the instalment to the loan boss, at that point, whatever the leaser can recoup from the account holder, a similar measure of the obligation will fall on the shoulders of the surety. A surety will likewise be dependable to the same measure of the risk since he has given the surety, and his risk is broad to a degree of the debtor's obligation. For instance, if an indebted person is making default in making the instalment to the surety and later on the surety needs to make the instalment of the sum alongside some expense and the intrigue additionally, at that point surety can recuperate that vital sum alongside the cost or enthusiasm from the indebted person. So his obligation will be coextensive of the debtor "s risk. The second point is surety's obligation might be constrained. A surety at the time of giving the surety can restrain his chance in the responsibility. So if there is a void contract between the indebted person and the bank, the surety risk will be the prime obligation. These are the focuses that are incorporated into the nature and degree of surety's obligation.
Factual Background :
The petitioner herein filed a suit SC 6622 of 1993 against the respondents for recovering a sum of Rs. 20,684.05 Ps. + interest and costs on the allegation that the 1st respondent on the suretyship of the 2nd respondent borrowed Rs. 15,000/- 11-11-1987 from the petitioner-Bank agreeing to pay interest at 16.5% compounded quarterly on Rs' monthly installments. 4,000/-, on the security of pigmy deposit, fixed deposit, etc., after that, the court issued summons to the respondents/defendants. The suit summons was served on the 2nd respondent who filed a written statement wherein, among other things, she contended that the 1st defendant died on 6-5-1993 in Manipal Hospital. Therefore, it is claimed that the suit is ab initio void as filed against a dead person. After, the application filed for bringing the legal representatives of the deceased, 1st defendant along with the application to condone the delay, etc. Those applications came to be rejected by the court below. That order was not questioned before the superior court, and it has become final. After that, the suit was dismissed against the 2nd respondent vide judgment dated 4-7-1997. Being aggrieved by the said judgment and decree dated 4-7-1997, the plaintiff filed this petition. Subsequently, the petitioner also filed I.A. 1 under Order I, Rule 10 of the CPC, and the Bank Manager's affidavit.
Questions Raised :
The principal question raised before the Hon'ble Karnataka High Court and before us was the question that involved determining the position of the appellants whether the legal representatives can be allowed to file a petition again.
The counsel of Petitioner refers case of Sudarskan Trading Company v B.T. Raju and Others in which the court held that:
“A suit isn't terrible at its beginning when there are multiple respondents, in any event, when one of the litigants was dead preceding the establishment of the suit. In such conditions, it is allowable for the offended party to welcome the L.Rs of the expired on record, given the Court ought to hear the complaints assuming any, raised by the proposed L.Rs concerning impediment”.
As demonstrated above, as on the date of this application, the case of the offended party seems, by all accounts, to be banished by the time all things considered and this inquiry is left open for the gatherings to unsettle under the steady gaze of the Trial Court.
The appeal is permitted, the reproved request is saved and the suit in SC 6622 of 1993 is re-established to document with a course to allow the offended party/candidate to implead the proposed respondents who are the L.Rs of the first litigant on record as litigants 1(a) and 1(b) and furthermore to give an occasion to document the composed explanation, and so on, and from that point to continue to think about the case, as per law, in the light of the perceptions made previously. It was fought that the suit was void ab initio as recorded against a dead individual. The obligation of surety isn't released, and the case can be continued against the surety. Profitable to the second defendant, who was a surety because on the occasion he pays the sum to the announcement holder, he would be qualified to recoup the sum from the first defendant or his lawful delegates as given under Section 145 of the Contract Act. Under those conditions, the contention of the educated Counsel for the respondent was rejected. In like manner, the I.A. was permitted allowing the Petitioners to bring the Legal Representatives of the first Defendant as Defendants l (a) and K (b) under Order 1, Rule 10 of the Code of Civil Procedure, 1908. Consequently, appeal permitted.
Observational Conclusions :
The appeal is permitted. The censured request is put aside, and the suit in SC 6622 of 1993 is re-established to document with heading to allow the offended party/applicant to implead the proposed litigants who are the L.Rs of the first respondent on record. Litigants 1(a) and 1(b) to give a chance to record composed articulation and continue, as per law, in light of the perceptions made above.
1. (1999) 2 Kar. L.J. 362
2. R.S.A.No. 1163 of 1975 (Decided On, 30 March 1983)
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