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Global Cleaning Services   06 March 2022

Summary suit against borrower legal heirs

Dear All
I filed summary suit under order xxxvii rule 2 of CPC against legal heirs of deceased borrower, but plaint was returned by court under order vii rule 10.

Please advice can I file civil suit for recovery of money against defendant through his legal heirs under Negotiation instrument Act 1881 clause 29.

Or what remedy is available?

Best regards

Farid Qureshi


 5 Replies

Shashi Dhara   07 March 2022

If time is barred by limitation you cannot file sui.t

Global Cleaning Services   07 March 2022

Time barred at court end as summary suit was filed within the limitation period.
In court judgment order they wrote that summary suit cannot be file against legal heirs, however negotiation instrument act fall in this case subject to availability of deceased property. hope your understanding

Shashi Dhara   07 March 2022

 it comes under small cause you have to approach high court for rivision ,if it comes in o.s. if limitation is not barred then you can file civil suit against lrs of deceased.

Palak batra   07 March 2022

Dear Querist,


Sec. 29 of Negotiation instrument Act 1881 talks about legal representation of a deceased person who signs his name to a promissory note, bill of exchange or cheque is liable personally thereon unless he expressly limits his liability to the extent of the assets received by him as such."


The circumstances have to be examined to see whether there is an express or tacit contract to the effect that the writing or the endorsement as the case may be, is made not the undertaking of the liability, or the guarantee of liability of the original drawer or the earlier endorser. 


In this case, Radhakishan S/O R.S. Nathulal vs Smt. Narainibai W/O Ramkishan it was held that, Certainly in the event of the endorser being liable, he should be liable personally, because the mere descripttion as executor has not the effect of restricting the liability for the purposes of Section 29. This is clear in case law also, which need not be set out at length. But in our view there is no liability on account of this endorsement which was one only for the collection of the dues.




1 Like

Global Cleaning Services   08 March 2022

Dear experts

In my case borrower signed promissory note, given a post dated cheque and signed payment receipt at the time of receiving of loan.
Borrower left sufficient property on his name, it has been confirm after court call verification to concern governing authorities.

Legal heirs not appeared in court and service done through pasting and newspaper as they avoiding to receive notice through Bailiff and courier.

My point is shall I go through negotiation instrument act or normal civil suit for fresh suit?

Prior to death borrower divorced his wife and children's are under age, below 18.

The only way of recovery attachment of his attachment property as still borrower name.

I sent reminders and legal notice when he was alive, the same received by himself as per courier report.



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