TaxTMI 
TaxTMI 
2018 (12) TMI 1192
X X X X Extracts X X X X
X X X X Extracts X X X X
....k, New Delhi 3) Rs.50,00,000/- Vide RTGS NO. SBINR5201506241669643 dated 24.06.2015 drawn on State Bank of India, Green Park, New Delhi 4) Rs.50,00,000/- Vide RTGS NO. SBINR5201506261679 dated 26.06.2015 drawn on State Bank of India, Green Park, New Delhi 5) Rs.50,00,000/- Vide RTGS NO. SBINR52015062916885929 dated 29.06.2015 drawn on State Bank of India, Green Park, New Delhi" 2. It is the case of the Plaintiff that Mr. Virendra Dhingra started paying simple interest @ 12% per annum to the Plaintiff and towards the said interest, had made payments. Since the details of the payments, were not filed, on a query from the Court, counsel for the plaintiff has handed over a chart showing four payments towards interest, on 21st August, 2015, 14th October, 2015, 2nd January, 2016 and 31st March, 2016 in the following manner: S.no. Cheque no. Date Amount 1. 001456 21/08/2015 Rs.4,43,836/- 2. 000680 14/10/2015 Rs.6,00,000/- 3. 001520 2/01/2016 Rs.9,00,000/- 3. According to the Plaintiff, Mr. Dhingra had defaulted in the payment of interest and principal, despite repeated requests, ....
X X X X Extracts X X X X
X X X X Extracts X X X X
..... Rashmi K. Agarwal 1986 Mah L.J. 993 (hereinafter, 'Rajesh Steel Centre') and judgment of a Single Judge of this Court in Sarla Devi & Ors. v. Daya Ram & Ors. [IA 9565/1994 in Suit no.1518/1994 decision dated 22nd November, 1994] 9. The Ld. Counsel for the Plaintiff on the other hand submits that both the judgments relied upon by the Ld. counsel for the Defendant have been either over ruled or set aside. He places reliance on Bank of India v. Industrial Polymer (1991) 93 BOMLR 218 (hereinafter, 'Bank of India') and the Division Bench's judgment in Sarla Devi & Ors. v. Daya Ram & Ors. 60 (1995) DLT 3 (DB) (hereinafter, 'Sarla Devi DB'). 10. It is further submitted by counsel that there is a difference between a decree being passed against the LRs and decree being executed. Insofar as the passing of a decree under Order XXXVII is concerned, the two judgments relied upon by him, support the case of the Plaintiff that there is no bar against claiming a remedy against the LRs of a person who may have availed a loan. He further submitted that the Defendants have not challenged the signatures of Mr. Virendra Dhingra but have specifically argued that they are not aware of the transactio....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... they have not inherited any property, the only result is that the decree can not be executed against them. This is a matter to be decided at the stage of execution. It does not affect the right of a court to pass a decree. This decision has been followed in the case of Ranjitsingh v. Narmadi (1931) A.I.R. Nagpur 173 where it is held that where an heir of a debtor is sued it is not open to him to raise the plea in course of the suit that he does not hold the assets of the deceased debtor. The plea is confined to execution only. 9. In our view, therefore, the difficulty expressed by the learned single Judge in the case of Rajesh Steel Centre v. Rashmi K. Agarwal (supra) is misconceived. A summary Suit can be filed against an heir and legal representative of a deceased defendant and the provisions of Order XXXVII apply in full to such a suit also. The decree however, can be executed only to the extent of the estate of the deceased in the hands of the judgment debtor. We therefore agree with Variava J. that the summons for Judgment against the heirs of defendant No.3 is maintainable." 14. The relevant portion of Sarla Devi (supra) is extracted herein below: "3.... Thereupon the a....
X X X X Extracts X X X X
X X X X Extracts X X X X
....2017 towards the principal amount, the suit is clearly maintainable under Order XXXVII CPC. The same is in respect of a liquidated sum based on a financial instrument and hence the question of maintainability is also decided in favour of the Plaintiff. 18. The next submission of the learned counsel for the Defendants is that since the suit prays for a decree for a sum of Rs. 3,84,00,000/- and not the exact amount of Rs. 3 crores which is the amount of the cheque, the suit under Order XXXVII CPC is not maintainable. This is based on a reading of judgment of this Court in IFCI Factors v. Vasudev Rao & Anr. in FAO (OS) 2014/2014. This judgment does not help the case of the Defendant as the ratio in the said judgment reads as under: "8. Pleadings in a summary suit have to be construed strictly for the reason an otherwise valuable right recognized by law that every person has a right to defend a proceedings initiated against him is curtailed by a summary suit because of business efficacy requiring that in commercial transactions of the kind envisaged by Order XXXVII a defendant must obtain leave to defend by prima facie pleading facts which if proved would non-suit the plaintiff." 19....