HARMEET SINGH AND ANR. vs RAVI INDER SINGH, DECEASED THROUGH LEGAL REPRESENTATIVES

2024-03-18 Information

$~21

* IN THE HIGH COURT OF DELHI AT NEW DELHI

% Date of decision: 18th March, 2024
+ CS(OS) 621/2019
HARMEET SINGH AND ANR. ….. Plaintiffs
Through: Mr. Abhay Mani Tripathi, Mr. Dhyaluchand & Ms. Shivangi Pandey, Advocates.

versus

RAVI INDER SINGH, DECEASED THROUGH LEGAL REPRESENTATIVES ….. Defendant
Through: Mr. Nidhesh Gupta, Sr. Advocate with Mr. Aarush Bhatta, Mr. Shubhankar Sen Gupta & Mr. Amit Dogra, Advocates.
CORAM:
HON’BLE MS. JUSTICE NEENA BANSAL KRISHNA

J U D G M E N T (oral)
I.A. 4726/2024 (u/S 152 r/w Section 151 of CPC, 1908 by defendants for modification of Order/Part-Decree dated 04.11.2022)

1. The application under Section 152 read with Section 151 of the Code of Civil Procedure, 1908 (hereinafter referred to as CPC), has been filed seeking modification of the Order/part-decree dated 04.11.2022, passed by this Court.
2. It is submitted by the applicants/ defendants that the plaintiffs had instituted a Suit for Recovery of Rs.2,77,25,000/- (Rupees Two Crores Seventy Seven Lakhs Twenty-Five Thousand Only) along with the interest from the defendants in their capacity as legal heirs of Late Shri Ravi Inder Singh.
3. In the part-Decree dated 04.11.2022, it was held as under:-
4. It is the case of the defendants that amount of Rs.95,00,000/- was given as loan by the plaintiffs out of which an amount of Rs.50,95,000/- has been paid to the plaintiffs by Late Ravi Inder Singh. They through Mr. Vashisht concede to the fact that difference between the amounts of Rs.95,00,000/- and Rs.50,95,000/-, i.e., Rs.44,05,000/- need to be paid by the defendants to the plaintiffs.

5. Noting the said submission, the Suit to the extent of recovery of Rs. 44,05,000/- is decreed with interest @8% per annum w.e.f. November 16, 2018 till realization.

4. It is submitted that the statement made by learned counsel for the defendants before the Court on 04.11.2022, was premised on the well-settled principle of law that the liability of the legal heirs is confined to be met from the estate of the deceased Late Sh. Ravi Singh. It was only under this bona fide understanding that learned counsel for the defendants, made the aforesaid statements. Further, in the entire pleadings, the defendants have denied their personal liability to make the payment of the said amount.
5. However, the plaintiff has reneged from their pleadings and has sought the execution of Decree against the defendants in their personal capacity, in the Execution Petition bearing Ex. P. No. 42/2023 and has sought attachment of the personal movable and immovable properties of the defendants. The Execution Court vide Order dated 29.01.2024, has directed the defendants to maintain status quo with regard to the title and possession of their immovable assets. The defendants have suffered grave hardship because of the aforesaid circumstances. The defendants have asserted that under the Hindu law, the liability of the legal heirs, is limited to the estate of the deceased and the personal acquisitions of the legal representatives cannot be attached.
6. It is further submitted that the statement made on behalf of the defendants, by their Counsel in the Court on 04.11.2022, cannot be taken out of the context of the entire pleadings. The defendants can be bound to repay the loan amount only to the extent of the estate of the deceased, as has also been stated by the plaintiffs, in his own plaint. Therefore, it is only a clarification required in the impugned Order and there is no other substantive change sought by the defendants.
7. The Ld. Counsel for defendants has placed reliance upon Pannalal and Ors. v. Naraini and Ors. AIR 1952 SC 170 and Bandaru Srinivassa Rao v. Sreyobhilashi Chit Funds, Wyra & Ors. 2007 SCC Online AP 706 to submit that the provisions codified in Section 50 to 53 CPC 1908 make it clear that the legal representatives are liable only to the extent of the property of the deceased and not in their individual capacity and a son cannot be made personally liable for the debts of his father.
8. Further reliance is also placed upon U.P.S.R. T. C. v.Imtiaz Hussain (2006) 1 SCC 380 to submit that the basis of the provision of Section 152 of the CPC 1908 is based on the well-established principle that the act of the court should prejudice no man and such an unintentional error by the court, must be rectified. In his case, it is only due to an accidental error/ omission which could be clarified that the liability has to be satisfied only from the estate of the Late Ravi Singh and the omission be incorporated. Reliance has also been placed on Niyamat Ali Molla vs. Sonargon Housing Co-operative Society Ltd. & Ors., (2007) 11 SCR 346 and J.K. Synthetics Ltd. vs. K. P. Agrawal & Anr., (2007) 2 SCC 433 to buttress the above argument advanced and state that Section 152 should not be narrowly construed in order to render it otiose.
9. Thus, a prayer is made that the part-decree dated 04.11.2022, be modified to read that the amount of Rs.44,05,000/-, is liable to be paid to the plaintiffs by the defendants out of the estate of Late Sh. Ravi Singh.
10. The plaintiffs in their reply have submitted that Late Sh. Ravi Singh had died prior to the filing of the suit. It is the legal representatives who have been made the defendants in their own capacity. The Reply dated 23.01.2021 to Legal Notice dated 20.11.2018, was sent by defendant No. 2, wherein he had simply denied its liability. Even in the Written Statement, the defendants have nowhere asserted that their liability would remain limited to the assets of Late Sh. Ravi Inder Singh.
11. Additionally, on 04.11.2022, the statement made by the learned Counsel on behalf of the defendants, was an unqualified statement accepting the liability to the extent of Rs.44,05,000/-, on the basis of which a part-decree has been passed. In the facts of admitted liability by the defendants, they cannot now seek an amendment in the decree, after more than one year.
12. It is further submitted that the benefit of Section 152 CPC cannot be granted to the defendants as it pertains only to arithmetical or clerical mistakes. Even Sections 50 to 53 of CPC, 1908 are applicable when the judgment debtor dies before the satisfaction of decree. In the present Case, Late Sh. Ravi Inder Singh had died prior to institution of the Suit and the defendants have been sued in the independent capacity and thus, these Sections are not applicable. On merits, it is submitted that this application is nothing but an attempt to evade the liability of the defendants arising out of unreserved categorical admissions of liability.
13. Learned counsel on behalf of the plaintiffs, has argued that Section 152 cannot be resorted to by the plaintiffs because the defendant is seeking a modification in the substantive Order; it does not qualify as either an arithmetical or a clerical mistake and therefore, Section 152 CPC is not attracted in the present Case. Further, it is argued that the power of Review cannot be exercised under the guise of Section 152 of CPC 1908.
14. It is, therefore, submitted that the application is liable to be rejected.
15. Submissions heard and judgments perused.
16. The plaintiffs in his entire plaint, has stated that on 16.12.2015, Rs.1,50,00,000/- was paid by the plaintiffs to Late Sh. Ravi Inder Singh and a Deed of Mortgage was executed by Late Sh. Ravi Inder Singh, in favour of the plaintiffs. It was further asserted that Sh. Ravi Inder Singh defaulted in repayment of the amount and on repeated demands by the plaintiffs, paid only Rs.4,00,000/-, through RTGS in December, 2016. He also issued few post-dated cheques, which on presentation were dishonoured.
17. Subsequent of the dishonour of the cheques, a Legal Notice of demand dated 06.01.2018 was served upon Sh. Ravi Inder Singh. Defendant No. 2 vide reply dated 23.01.2018, apprised the plaintiffs that Late Sh. Ravi Inder Singh has already expired on 21.01.2017. The plaintiffs in Paragraph 15 of the plaint, specifically states that the defendants being his legal heirs failed to pay the legal debt and outstanding loans and are hence, liable to pay the outstanding amount of Rs.2,77,25,000/-, for which the defendants had jointly and severally liable.
18. From the entire plaint, it is evident that the loan transaction was entered into by the plaintiffs with Late Sh. Ravi Inder Singh and after his demise, he has sought recovery of his loan amount from the defendants being the legal heirs of Sh. Ravi Inder Singh. This is also evident from the title wherein the defendant is described as Sh. Ravi Inder Singh, deceased, through his legal representatives, namely, Mrs. Anjali Singh, Mr. Jujhar Singh and Ms. Nanki Singh.
19. From the comprehensive reading of the plaint, it is evident that the plaintiffs have made the Claim against the defendants, only in respect of a debt incurred by their father/ Late Sh. Ravi Inder Singh. The plaintiffs cannot claim a relief beyond their own pleadings. They themselves have asserted that the defendants are liable being the legal heirs of Sh. Ravi Inder Singh. The defendants, therefore, can only be held liable to repay the debts of Late Sh. Ravi Inder Singh, to the extent of the estate of the deceased in their hands and it cannot be converted into a personal liability.
20. As submitted on behalf of the plaintiffs while Section 152 CPC may not be the correct Section applicable in the present case, however, Section 153 of CPC provides for General Power to Amend and states that the Court may, at any time, and on such terms as to costs or otherwise as it may think fit, amend any defect or error in any proceeding in a suit; and all necessary amendments shall be made for the purpose of determining the real question or issue raised by or depending on such proceeding.
21. Akin to Section 151 CPC, Section 153 CPC confers general power to amend any defect or error in the proceedings in the suit.
22. In the case of Hansabai Shripati Bhosale vs. Parubai Gopal Bhosale Since Deceased Through Her Legal Heirs Tanaji Gopal Bhosale and Others 2009 SCC OnLine 1179, the Bombay High Court observed that Section 153 employs the phraseology any proceeding in a suit. It was observed that one has to give wide meaning to the phrase in any proceeding so as to advance the cause of justice. All proceedings in the Court of Civil jurisdiction would fall within the scope of this phrase so as to lean in favour of Court having power under Sections 151, 152 and 153 to correct errors in the proceeding so as to amend judgment and Decree in order to do justice between the parties. Moreover, the correction of the error or mistake in the proceedings, depends on the nature of the mistake or error as per the facts of each case. Ex facie the application made under Section 153 is to facilitate ex-defito-justitia i.e., to meet real and substantial justice. Therefore, the corrections may be made in the identity of suit property in a decree. If such corrections under such amendment are not allowed under Section 153 of CPC, 1908, then the plaintiff will be without remedy though he has right over the suit property. It will be against the principles of ubi jus ibi remedium.
23. In Gurdial Singh and Others vs. Raj Kumar Aneja and Others (2002) 2 SCC 445, the Apex Court explained that the distinction between an Order under Order VI Rule 17 and Section 153 of CPC, 1908. It was observed that Order VI Rule 17 of CPC, 1908 confers discretionary jurisdiction on the Court exercisable at any stage of the proceeding to allow either party to alter or amend his pleadings in such manner and on such terms as may be just. The power of amendment under Order VI Rule 17 of CPC, 1908 is, therefore, specific to amendment of the pleadings i.e., Plaint, Written Statement and Replication which is filed by the parties. On the other hand, Section 153 of CPC, 1908 entitles general powers to amend which can be used by the Court may at any time, and on such terms as it may think fit, to amend any defect or error in any proceeding in a suit.
24. Further, this Court in its Full Bench decision in Kedar Nath & Ors. vs. Ram Prakash & Ors. 1999 (48) DRJ (FB), observed that under Section 153 CPC, 1908 the Court has power to make suo moto amendments and can, therefore, be applied to verbal slips or defects.
25. The conspectus of the above authorities clearly establish that the Court has wider powers to make corrections under Section 153 of CPC 1908 than envisaged under Section 152 CPC, 1908 and the same has been interpreted liberally to prevent causing prejudice to any party and to advance the cause of justice. All proceedings in the Court of Civil jurisdiction would fall within the scope of Section 153 CPC so as to lean in favour of Court having power to correct errors in the proceeding or amend judgment and decree in order to do justice between the parties.
26. However, in the present Case, there is no modification of the partial decree, which is required to be made but it has to be understood in the context of the averments made in the plaint itself wherein the plaintiffs themselves have limited the liability of the defendants, to the extent of they being the legal heirs of the deceased Sh. Ravi Inder Singh, who had the primary liability to pay the loan taken by him. Therefore, the defendants can be held liable to the extent of the estate of the deceased and not in their personal capacity.
27. The application under Section 152 r/w Section 151 of CPC, 1908 by defendants for modification of Order/Part-Decree dated 04.11.2022 is accordingly disposed of.
(NEENA BANSAL KRISHNA)
JUDGE
MARCH 18, 2024/RS

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