TaxTMI 
TaxTMI 
2019 (4) TMI 883
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....om his father in Palam Vihar, Gurgaon. He was a property dealer. He passed away on 7th October, 2008 and the Plaintiffs did not have any information about his movable and immovable properties. According to the Plaintiffs, the Defendants committed various acts of fraud and misappropriated the money belonging to late Shri. Hari Om Rana. It is the allegation in the plaint that all the documents and the details of the bank accounts including the cheque books, passbooks, ATM cards, FDRs etc. pertaining to late Shri. Hari Om Rana have been taken away by her in-laws. She claims that her husband had deposited a sum of Rs. 3.5 crores in his bank account which was received by him from the sale proceeds of some lands along with his father, Defendant No. 1 - Rampal. The Plaintiffs approached the State Bank of Patiala Village Bamnoli, Dwarka which is now State Bank of India, which denied the existence of such an account. The Plaintiffs then filed Civil Suit No 139/2011 seeking details of all the bank accounts and fixed deposits maintained by her husband. Upon the same being disclosed by the bank, they have filed the present suit seeking recovery. The submission of the Plaintiffs is that there a....
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....end the suit. It is stated that there was no loan transaction between him and his son. The Plaintiffs have already filed a suit for partition in the Court of Civil Judge, Gurgaon which is pending and have sought relief of partition in respect of all assets of late Shri. Hari Om Rana. The present suit is barred under Order II Rule 2 CPC and is also barred by limitation. It is further pleaded that since late Shri. Hari Om Rana died intestate, his mother is also an heir to his movable and immovable assets and hence, in the absence of the mother, no decree can be passed in the present suit. It is stated that both the Plaintiffs i.e. the daughter-in-law and the granddaughter have been fully taken care of. That late Shri. Hari Om Rana did not own any lands and the lands which were sold by him belonged to Rampal and the money which was deposited was from the land belonging to Rampal. The transfer of the money took place during the life time of late Shri. Hari Om Rana almost a year prior to his death. Various details have been given in the application in respect of transactions with third parties for sale of lands and the reasons for withdrawal of the various sums. However, all these deali....
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....HDFC Bank Limited and Others. and Civil Suit 102/2011 titled Rampal Singh Rana vs. Anju Bala Analysis and findings 8. The maintainability of the suit under Order XXXVII cannot be disputed in as much as all the monies have been paid to Defendant No. 1 through banking channels and the sum is a liquidated sum. The suit cannot be dismissed as being barred by limitation as the knowledge of the actual transactions were acquired by the Plaintiffs only in 2011. The present suit under Order XXXVII has been filed by the Plaintiffs who are two of the legal heirs of late Shri. Hari Om Rana. The dispute between the parties is a family matter. The documents placed on record i.e. the bank statements etc. are the basis of the suit. Shri. Hari Om Rana to whom the bank accounts belonged, is no longer alive. The Plaintiff No. 1 is his wife and Plaintiff No. 2 is the daughter of late Shri. Hari Om Rana. There are litigations which are already pending between the parties including a suit for partition. Late Shri. Hari Om Rana has died intestate and accordingly has 3 legal heirs i.e. his wife, daughter and his mother. In Civil Suit No 102/2011 the Civil Judge, Gurgaon has declared all three parties ....
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....ount were a loan to his father. There is no loan agreement placed on record. Furthermore, it has already been held that late Shri. Hari Om Rana's mother is also one of the legal heirs to the estate of late Shri. Hari Om Rana and owns 1/3rd share. She ought to have been impleaded as a party to the present suit. However, in so far as the FDR is concerned, for a sum of Rs. 1,12,19,339/-, the same has been encashed by Mr. Rampal after the death of the deceased. The question as to whether he was a nominee in the bank account or FDR and if so, could he have taken these sums, is a question to be gone into in trial. It is the admitted position however, that the said amount has been taken by Mr. Rampal. In CS(OS)1073/2011 it is the clear finding of this Court that a nominee doesn't become the owner of the amounts. A perusal of the following paragraphs establishes this fact: - "14. A bare reading of Section 45ZA of the Banking Regulation Act would show that any depositor, with a Bank, may nominate a person in a prescribed manner, who, in the event of the death of the depositor, would be entitled to return of the money by the Bank. This Section also makes it clear that the payment made by a ....
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....granting of leave to defend depends on the facts of each case. Admittedly, there is no loan agreement and there are no documents admitting liability. However, the encashment of the FDR and the payments made from the bank account of late Shri. Hari Om Rana to his father's bank account are circumstances that go against the Defendant No.1. It is the settled position in law that if the pleadings of the parties require to be adjudicated by the Court, the exceptional procedure under Order XXXVII CPC should not lead to decreeing of the suit. While there are triable issues which have been raised, the leave to defend cannot also be unconditional. The Supreme Court in IDBI Trusteeship Services Ltd. v. Hubtown Ltd. (2017) 1 SCC 568 has held as under: "17. Accordingly, the principles stated in para 8 of Mechelec case [Mechelec Engineers & Manufacturers v. Basic Equipment Corpn., (1976) 4 SCC 687] will now stand superseded, given the amendment of Order 37 Rule 3 and the binding decision of four Judges in Milkhiram case [Milkhiram (India) (P) Ltd. v. Chamanlal Bros., AIR 1965 SC 1698 : (1966) 68 Bom LR 36] , as follows: 17.1. If the defendant satisfies the court that he has a substantial defe....