Calcutta High Court

Sujata Jalan vs Smt. Kanak Himatsingka & Ors on 12 February, 2025

                  IN THE HIGH COURT AT CALCUTTA
                 (Ordinary Original Civil Jurisdiction)
                              ORIGINAL SIDE


Present:

The Hon'ble Justice Krishna Rao



                             G.A. No. 1 of 2023
                                      In
                             CS No. 83 of 2022



                                Sujata Jalan

                                  Versus

                          Smt. Kanak Himatsingka & Ors.




           Mr. Utpal Bose, Sr. Adv.
           Mr. Aniruddha Mitra, Sr. Adv.
           Mr. Zeeshan Haque
           Mr. Kaushik Banerjee
           Ms. Rashmita Sen
                                                  ... For the plaintiff.


           Mr. Anuj Singh
           Mr. Saubhik Chowdhury
           Ms. Tapasi Bose
           Mr. P. Sinha
           Mr. S. Banerjee
                                                  ... For the defendants.
                                         2


Hearing Concluded On : 22.01.2025

Judgment on              : 12.02.2025

Krishna Rao, J.:

1. The plaintiff has filed the present application being G.A. No.1 of 2023 in

C.S. No. 83 of 2022 praying for judgment upon admission for a sum of

Rs. 50,00,000/- along with interest at the rate of 15% per annum from

1st January, 2018 till realization of the said amount.

2. As per the case made out by the plaintiff, the original defendant since

deceased Srawan Kumar Himatsingka, the husband of the substituted

defendant no.1(a) and the father of substituted defendant no.1(b) and

1(c) had approached the plaintiff for a short term loan/ financial

assistance of Rs. 50,00,000/- for the purpose of expanding his

business. Due to the close proximate relations between the plaintiff and

the original defendant and the assurances given by the original

defendant, the plaintiff has paid Rs. 50,00,000/- in two tranches on

29th August, 2013, an amount of Rs. 25,00,000/- and on 6th

September, 2013, an amount of Rs. 25,00,000/- by way of bank

transfer.

3. On receipt of the loan amount, the original defendant has acknowledged

the receipts and had issued postdated cheques to the plaintiff and also

agreed that the said loan amount would carry interest at the rate of

17% per annum. As per the request of the original defendant, time for

repayment of loan was extended from time to time and finally, it was

agreed between the parties that the interest would be 15% per annum

instead of 18% per annum with effect from 1st October, 2017.

4. The original defendant has also issued a cheque no. 077969 for Rs.

50,00,000/- dated 1st April, 2018 but on presentation, the said cheque

was dishonored with the reasons "Funds Insufficient". The original

defendant had also issued two cheques for Rs. 1,66,439/- and Rs.

1,68,287/-, each dated 15th September, 2018 and 30th September, 2018

being the interest from 1st January, 2018 to 31st March, 2018 and 1st

April, 2018 to 30th June, 2018 after deducting TDS. On presentation of

the said cheques, the same were also dishonored with the reasons

"Funds Insufficient". The original defendant has paid interest only uptill

30th January, 2017.

5. The original defendant had issued another cheque No. 096614 dated 1st

April, 2019 for an amount of Rs. 50,00,000/- and the plaintiff has

presented the said cheque but the same was dishonored with the

endorsement "Insufficient Funds".

6. The plaintiff had sent an advocate's notice to the original defendant on

10th September, 2021 calling upon the original defendant for refund of

entire amount together with interest at the rate of 15% per annum but

inspite of receipt of notice neither the original defendant has paid the

amount nor has sent any reply.

7. Mr. Utpal Bose, Learned Senior Advocate appearing for the plaintiff

submits that during the pendency of the suit, the original defendant

passed away and accordingly, the legal heirs of the defendant were

substituted as defendants and the plaint is also amended.

8. Mr. Bose submits that payment of an amount of Rs. 50,00,000/- is

admitted from the bank transaction and the acknowledgement of the

original defendant. He further submits that from the correspondences

between the plaintiff and the original defendant, it is clear that the

original defendant had agreed to pay interest initially at the rate of 17%

per annum and the original defendant has paid interest till 30th

December, 2017 by deducting TDS. He further submits that as per

request of the original defendant, the rate of interest was reduced to

15% per annum with effect from 1st October, 2017.

9. Mr. Bose submits that the original defendant has issued cheques for

the principal amount as well as for the interest but the cheques were

dishonored. He submits that from the documents, it is clear that there

is an unequivocal admission of liability on behalf of the original

defendant. He submits that the defendant no. 1(b) has filed affidavit-in-

opposition in the present application but he has not stated that the

original defendant has not left behind any assets. He submits that a

mere statement has been made by the defendant no.1(b) that he has

not inherited any of the assets left behind by the original defendant.

10. Mr. Bose submits that the last letter from the original defendant

acknowledging the loan is dated 28th December, 2017 and last cheque

for repayment of principal amount of Rs. 50,00,000/- is dated 1st April,

2019 and the last date of deposit of TDS is 12th December, 2020. He

submits that the plaintiff has filed the suit on 31st March, 2022. He

submits that the plaintiff has filed the suit within the limitation period.

He further submits that the plaintiff is also entitled to get the benefit of

the order passed by the Hon'ble Supreme Court in the suo moto case

dated 10th January, 2022 wherein the Hon'ble Supreme Court extended

the period of limitation during the Covid-19 pandemic.

11. Mr. Bose in support of his submissions relied upon the following

judgments:

                 (i)    Uttam Singh Duggal & Co. Ltd. vs. United
                        Bank of India and Ors. reported in (2000) 7
                        SCC 120.

(ii) Dolly Mazumder & Ors. vs. Zee Telefilms Ltd.

reported in 2013 SCC OnLine Cal 9764.

(iii) Rahul S. Shah vs. Jinendra Kumar Gandhi & Ors. reported in (2021) 6 SCC 418.

12. Mr. Anuj Singh, Learned Advocate representing the defendants submits

that there is no pleading in the plaint or in the application alleging any

admission by the substituted defendants. He submits that there is no

pleading in the amended plaint or in the application that the

substituted defendants have inherited any part of the estate of the

deceased. He submits that the purported admission of the original

defendant cannot be fastened upon the substituted defendants.

13. Mr. Singh submits that after the death of the original defendant, the

present defendants have been added as substituted defendants but the

question with regard to the right to sue to be decided in course of trial

only. He submits that whether the substituted defendants have

inherited any estate of the deceased and to what extent can be decided

at the time of trial only. He submits that the substituted defendants did

not have any occasion to deal with the documents relied by the plaintiff

in the affidavit-in-reply.

14. He submits that the defendant no. 1(b) is not aware of privy to the

transactions between the plaintiff and the original defendant. He

submits that the defendant no. 1(b) has not inherited any estate of the

deceased.

15. He submits that the admission, if any, is made by the original

defendant during his life time, cannot bind the defendant no. 1(b) who

was neither party to the transactions nor party to the concerned

agreements between the plaintiff and the original defendant. He

submits that no cause of action disclosed against the substituted

defendants. He further submits that the suit filed by the plaintiff is

barred by limitation.

16. Mr. Singh submits that the amended application contained no pleading

and/or disclosure, demonstrating if the substituted defendants were

indeed intermeddling with the estate of the deceased and/or inherited

any estate of the deceased against which, if judgment upon admission

were passed, could be enforced.

17. Mr. Singh submits that whether the 'right to sue' survives is an issue in

the suit, which cannot be decided in a summary manner. In support of

his submissions, Mr. Singh relied upon the judgment in the case of

Puran Singh and Others vs. State of Punjab and Others reported in

(1996) 2 SCC 205.

18. The plaintiff has filed the suit against the Srawan Kumar Himatsingka

for recovery of an amount of Rs. 92,85,170/- along with interest

pendente lite and interest upon judgment at the rate of 18% per

annum. The present application is also filed during the life time of the

original defendant. The original defendant has filed Affidavit-in-

Opposition to the present application through his Constituted Attorney,

namely, Nakul Himatsingka, who is the son of the original defendant

and the defendant no. 1(a) herein. After the death of original defendant,

the legal heirs have been substituted as defendant no. 1(a), 1(b) and

1(c).

19. The defendant no. 1(b) has raised an issue in the present application

that, whether the defendants have inherited any estate of the deceased

i.e. the original defendant and what extent can be decided only in

course of trial of the suit and not in the present application for

summary judgment.

20. Section 2(11) of the Code of Civil Procedure, 1908 defined the legal

representative which reads as follows:

"2(11) "legal representative" means a person who in law represents the estate of a deceased

person, and includes any person who intermeddles with the estate of the deceased and where a party sues or is sued in a representative character the person on whom the estate devolves on the death of the party so suing or sued."

It is clear that the legal representatives of a deceased are liable

only to the extent of the estate which they inherit.

In the case of Custodian of Branches of Banco National

Ultramarino Vs. Nalini Bai Naique reported in (1989) Supp (2) SCC

275, it was observed that the expression "legal representative" as

defined in CPC is applicable to proceedings in a suit. It means a person

who in law represents the estate of a deceased person and includes any

person who intermeddles with the estate of the deceased and where a

party sues or is sued in a representative character the person on whom

the estate devolves on the death of the party so suing or sued. The

definition is inclusive in character and its scope is wide as it is not

confined to legal heirs only, instead, it stipulates a person who may or

may not be an heir, competent to inherit the property of the deceased or

he should represent the estate of the deceased person. It includes heirs

as well as persons who represent the estate even without title, either as

executors or administrators in possession of the estate of the deceased.

All such persons would be covered by the expression "legal

representative". If there are many heirs, those in possession bona fide,

without there being any fraud or collusion, are also entitled to represent

the estate of the deceased.

21. The aforesaid judgment refers to representation of an estate of a

deceased person which would devolve on his legal representatives and

where the decree has to be executed vis-a-vis such an estate. In such a

case, the heirs of the deceased judgment debtor would be under a legal

obligation to discharge their duties to satisfy the decree or an order

from the estate of the deceased.

22. If the estate of the deceased becomes liable then the legal

representatives who in law represent the estate of a deceased person or

any person who intermeddles with the estate of the deceased and where

a party sues or is sued in a representative character, the person on

whom the estate devolves on the death of the party so suing or sued is

liable to the extent the estate has devolved. Hence, what is crucial is

that the estate of a deceased person which becomes liable and the legal

representatives must discharge their liability to a decree holder or a

person who has been granted an order to recover from the estate of the

deceased which they would represent and not beyond it.

23. This position is also clear on a reading of Section 50 of the Code of Civil

Procedure, 1908 which reads as follows:

"50. Legal representative .-(1)Where a judgment-debtor dies before the decree has been fully satisfied, the holder of the decree may apply to the Court which passed it to execute the same against the legal representative of the deceased.

(2)Where the decree is executed against such legal representative, he shall be liable only to the extent of the property of the deceased which has come to his hands and has not been duly disposed of; and, for the purpose of ascertaining such

liability, the Court executing the decree may, of its own motion or on the application of the decree-

holder, compel such legal representative to produce such accounts as it thinks fit."

24. This Court finds that any decree which is relatable to the extent of the

property of the deceased which has come to the hands of the legal

representative and has not been duly disposed of, the same would be

liable for execution by a decree holder so as to compel the legal

representatives to satisfy the decree.

25. The plaintiff has relied upon the money transactions between the

original defendant and the plaintiff, interest paid by the deceased

defendant during his life time to the plaintiff, TDS paid with respect to

the interest, communications made between the plaintiff and the

deceased defendant and the cheques issued by the deceased defendant.

The defendant no. 1(b) has taken a specific defence that he has not

inherited any estate of the deceased.

26. The plaintiff has relied upon certain documents in their affidavit-in-

reply but in an application under Order XII, Rule 6 of the Code of Civil

Procedure, 1908, the same cannot be taken into consideration as the

defendants could not get an opportunity to deal with the said

documents.

27. There is no evidence on record to say that any estate devolves upon the

defendant nos. 1(a), 1(b) and 1(c) on the death of the original defendant.

28. In the case Puran Singh & Ors. (supra), the Hon'ble Supreme Court

held that:

"4. A personal action dies with the death of the person on the maxim actio personalis moritur cum persona. But this operates only in a limited class of actions ex delicto, such as action for damages for defamation, assault or other personal injuries not causing the death of the party, and in other actions where after the death of the party the granting of the relief would be nugatory. (Girja Nandini Devi v. Bijendra Narain Choudhury) But there are other cases where the right to sue survives in spite of the death of the person against whom the proceeding had been initiated and such right continues to exist against the legal representative of the deceased who was a party to the proceeding. Order 22 of the Code deals with this aspect of the matter. Rule 1 of Order 22 says that the death of a plaintiff or defendant shall not cause the suit to abate if the right to sue survives. That is why whenever a party to a suit dies, the first question which is to be decided is as to whether the right to sue survives or not. If the right is held to be a personal right which is extinguished with the death of the person concerned and does not devolve on the legal representatives or successors, then it is an end of the suit. Such suit, therefore, cannot be continued. But if the right to sue survives against the legal representative of the original defendant, then procedures have been prescribed in Order 22 to bring the legal representative on record within the time prescribed. In view of Rule 4 of Order 22 where one of two or more defendants dies and the right to sue does not survive against the surviving defendant or defendants alone, or a sole defendant dies and the right to sue survives, the Court, on an application being made in that behalf, shall cause the legal representatives of the deceased defendant to be made a party and shall proceed with the suit. If within the time prescribed by Article 120 of the Limitation Act, 1963 no application is made under sub-rule (1) of Rule 4, the suit shall abate as against the deceased defendant. This rule is based not only on the sound principle that a suit cannot proceed against a dead person, but also on the principle of natural justice that if the original

defendant is dead, then no decree can be passed against him so as to bind his legal representative without affording an opportunity to them to contest the claim of the plaintiff. Rule 9 of Order 22 of the Code prescribes the procedure for setting aside abatement."

29. In the present case, the plaintiff has filed the suit originally against

Srawan Kumar Himatsingka for recovery of loan amount along with

interest. Upon the death of the original defendant, the present

defendants have been substituted as legal representatives of the

original defendant. Once the legal representatives have been

substituted as defendants in place of the original defendant upon the

death of the original defendant against whom the plaintiff has made

claim for recovery of money, the Court has to decide the first issue

whether the right to sue survives or not. This Court finds that the said

issue can only be decided by leading evidence.

30. Section 37 of the Contract Act, 1872 reads as follows:

"Section 37. Obligations of parties to contract.- The parties to a contract must either perform, or offer to perform, their respective promises, unless such performance is dispensed with or excused under the provisions of this Act, or of any other law.

Promises bind the representatives of the promisor in case of the death of such promisors before performance, unless a contrary intention appears from the contract."

The said provision states that a promise made by a promisor is

binding on his representatives in the case of his/her death unless a

contrary intention appears from the contract. Legal representatives are

liable for the debts of their predecessor, but their liability is limited to

the extent of the estate of the deceased inherited by them. Therefore,

the representatives of a promisor are bound to perform the promisor's

contract to the extent of the assets of the deceased falling in their

hands. But they are not personally liable under the contracts of the

deceased and are also not liable for personal contracts of the deceased.

Thus, a contract can be performed vicariously by the legal

representatives of the promisor depending upon the subject-matter of

the contract and the nature of performance that was stipulated thereto.