Delhi High Court
M/S. Moti Lal Jain & Sons And Ors. vs State Bank Of Bikaner & Jaipur on 23 December, 2010
Author: Valmiki J. Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RFA No.274/1999
% 23rd December, 2010
M/S. MOTI LAL JAIN & SONS AND ORS. ...... Appellants
Through: Mr. R.K.Jain, Advocate with
Mr. Rajesh, Advocate.
VERSUS
STATE BANK OF BIKANER & JAIPUR .... Respondent
Through: Mr. Uchit Bhandari,
Advocate.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
1. Whether the Reporters of local papers may be
allowed to see the judgment?
2. To be referred to the Reporter or not?
3. Whether the judgment should be reported in the Digest?
VALMIKI J. MEHTA, J (ORAL)
1. The limited issue argued in this appeal against a money decree
is by the legal heirs of the deceased Jai Mala Jain to whom financial limits
were sanctioned by the respondent bank. The original limits were
sanctioned to the late husband of Smt. Jai Mala Jain late Sh. Moti Lal Jain and
after the death of Sh. Moti Lal Jain the account was taken over by his widow
Smt. Jai Mala Jain who executed the necessary security documents in favour
of the bank on 17.12.1980. Smt. Jai Mala Jain also expired and her legal
heirs have been brought on record.
2. The trial Court decreed the suit for Rs.83,313/- along with
pendente lite and future interest. The trial Court also passed the preliminary
decree under Order 34 CPC against the mortgaged property No.2534,
Naiwara Chawri Bazar, Delhi in favour of the respondent/plaintiff and against
the appellant/defendants. A reading of the impugned judgment as also the
record below brings out the admitted position that it was only Moti Lal Jain
who created the equitable mortgage of the property when he operated the
account however, after his death his widow Smt. Jai Mala Jain never
executed any documents continuing with the mortgage of the immovable
property when a fresh account was opened in her name. Accordingly, there
is no mortgage of the property in favour of the respondent bank after the
account came to be taken over by Jai Mala Jain. The impugned judgment and
decree therefore having been passed against an alleged mortgaged property
under Order 34 CPC is clearly therefore unsustainable and set aside.
3. The question then is that what is the relief to be granted in the
facts and circumstances of the present case in favour of the respondent
bank. It is not disputed that the present appellants are the legal heirs of
Smt. Jai Mala Jain. Since the case against Smt. Jai Mala Jain has been held to
be proved before the trial Court, and which detailed finding, I am in
agreement with the judgment and decree to the extent that the money
decree is passed against Jai Mala Jain has to stand. The relevant issue in this
regard is issue No.5 and the findings of which are contained in para 32 of the
impugned judgment with which I agree and the same reads as under:-
"32. The plaintiff has claimed a sum of Rs.83,313/- which
includes interest upto 31.5.84. The defendants have alleged in
the written statement that no amount is due from the
defendants. Neither any amount was due from Shri Moti Lal Jain
nor any amount is due from Smt. Jai Mala Jain. DW1 has also
deposed that Smt. Jai Mala Jain has paid the entire amount
whatsoever was due from her. Neither any details of the amount
not the dates of their deposit have been disclosed by the
defendants nor any receipt has been produced. The defendants
have failed to lead an iota of evidence in support of their
allegations that they have paid the entire amount. As compared
to it the plaintiff has proved the document executed by Smt. Jai
Mala Jain as proprietor of defendant No.1 which are Ex.P2 to P10.
After his death Smt. Jai Mala Jain as proprietor wrote a letter
which has been exhibited as P13, she executed fresh documents
which are Ex.P14 to Ex.P15. Ex.P21 is the revival letter executed
by Smt. Jai Mala Jain. Ex.P20 is the balance confirmation letter
acknowledging the amount of Rs.76687.47 paisa due as on
31.12.82. The plaintiff has also proved statement of account as
Ex.P12. According to the statement of account a sum of
Rs.77572.73 paisa was due from the defendants inclusive of
interest upto 2.1.84. The plaintiff has disclosed in para 12 of the
plaint that a sum of Rs.77572.73 paisa inclusive of interest upto
2.1.84 and a sum of Rs.5740.27 paisa has became due as
interest @ 18% p.a. with effect from 3.1.84 to 31.5.84. Needless
to mention here that the certified copy of statement of account is
admissible under the Banker's Book Evidence Act. Thus I hold
that the plaintiff is entitled to Rs.83,313.00/- from the defendants
No.1 to 7."
4. Accordingly, the legal heirs of Smt. Jai Mala Jain will be liable only
if they have inherited and to the extent they have inherited the assets of late
Smt. Jai Mala Jain. The legal heirs cannot be fastened with any liability
except to the extent of the assets they have inherited from deceased Smt.
Jai Mala Jain. This course of action is acceptable to counsel for both the
parties because it has emerged on record that the loan account was
completely taken over by Smt. Jai Mala Jain who never created any equitable
mortgage in favour of the respondent bank. Accordingly, the impugned
judgment and decree is modified by holding that the suit of the respondent
bank shall stand decreed against the appellants as a money decree only and
not under Order 34 CPC and the appellants will be liable as legal heirs of
Smt. Jai Mala Jain to the extent that the appellants have inherited assets of
late Smt. Jai Mala Jain. Accordingly, the appeal is disposed of. Let a decree
sheet be prepared holding the appellants liable for the amount of the money
decree as passed by the trial Court to the extent of the assets they inherited
from late Smt. Jai Mala Jain.
5. Appeal is accordingly disposed of modifying the impugned
judgment and decree to the extent stated above, leaving the parties to bear
their own costs. Trial Court record be sent back.
DECEMBER 23, 2010 VALMIKI J. MEHTA,J
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