18 January 2020
A loan is given to Mr. borrower on 25.04.2017 by taking in repayment a post dated cheque dated 25.04.2018 when presented on its date, it returned with remarks a/c freeze. When notice u/s 138 was issued, It has come to our knowledge that he expired on 21.03.2018 i.e. before presentation of cheque in Bank on 25.04.2018. Last payment of interest by cheque was on 06.02.2018. 1. Whether suit under Order 37 CPC can be filed on behalf of this returned cheque of borrower against his legal heir i.e. wife. 2. If yes, whether notice u/s 80 CPC is to be issued again or notice u/s 138 earlier issued was sufficient. 3. Any other remedy.
20 January 2020
Since the borrower is no more, no case can be made out against such deceased person, hence no case or notice Section 142/138 of the NI Act, 1881 is maintainable and filed.. Notice u/s 80 CPC may be issued to all LRs of deceased borrower. Whether suit u/o XVII Rules 1 & 2 is maintainable against LRs of deceased borrower, simple answer is "NO" if I am correct? Under such circumstances straight case for recovery may be suitable. It would be advisable to consult a local senior for better appreciation of facts/ documents and guidance.
28 January 2020
Order 37 Rule 1 of Sub Rule (2) provides as under:
"Subject to the provisions of subrule (1), the Order applies to the following classes of suits, namely:
(a) suits upon bills of exchange, hundies and promissory notes;
(b)suits in which the plaintiff seeks only to recover a debt or liquidated demand in money payable by the defendant, with or without interest, arising,
(i)on a written contract; or
(ii)on an enactment, where the sum sought to be recovered is a fixed sum of money or in the nature of a debt other than a penalty; or
(iii) on a guarantee, where the claim against the principal is in 3 respect of a debt of liquidated demand only.
(iv) suit for recovery of receivables instituted by any assignee of a receivable.
Aug 29, 2017 - AIR 2002 MADRAS - 296, it is observed that "In a suit for recovery of amount filed against legal heirs of borrower, on basis of pronote, there is nothing to show that said heirs though related to maker, have inherited his estate, so as to become liable to repay the debts and as such suit is not maintainable."
Suit on basis of cheque against legal heirs of deceased
Section 29 and 29A of Negotiable Instruments Act 1881….. Order VII Rule 10 and Order XXXVII Rule 2 and 3 of Civil Procedure Code 1908….. Summary suit against the legal heir of the executant of negotiable instrument— Maintainability—– plaintiff filed suit for recovery of money on the basis of cheque whose maker died before encashment of the same— suit was dismissed by the trial court— validity— Maker of cheque had died before the same could be presented for encashment— said cheque has ceased to have any effect as a bill of exchange on the death of its maker —- summary suit cold only be filed against the executants of bill of exchange hundies or promissory notes and not otherwise— party who has not a drawer or maker of the cheque bill of exchange was ot liable thereon and he could not be sued under order XXXVII rule 2 and 3 CPC—- Legal representatives of deceased must sign the instruments in order to make them liable thereunder—- defendant s has not signed the disputed cheque they were not liable to be plaintiff against the cheque issued by their predecessor
06 February 2020
Respected Sirs, thanks a lot for guide me by giving your valuable time, special thanks to Sh. T.kalaiselvan, who guided with citation to avoid litigation if one does not have information about the estate of died person.