IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 13TH DAY OF FEBRUARY, 2019 BEFORE THE HON’BLE MR. JUSTICE SREENIVAS HARISH KUMAR R.F.A.NO.1008 OF 2010 BETWEEN:
Shri M.G.Srinivasa S/o Shri M.S.Gopal Krishna Aged about 47 years No.169, ESI Hospital Road 2nd Block, Rajajinagar Bengaluru – 560 010 …Appellant (By Sri Mallinath S Maka, Advocate) AND:
1. State Bank of India City Market Branch, SJP Road And Local Head Office at No.48 Church Street, Bengaluru – 560001 By its Branch Manager Mr. N.Prem Kumar 2. Shri Puttaswamy, S/o Kenche Gowda Since deceased by LRs 2(a) Smt. M.Nanda, Major, W/o. Late Shri. Puttaswamy, 2(b) Shri. Adarsh, Minor, S/o. Late Shri. Puttaswamy, 2(c) Kumar Arpitha, Minor, D/o. Late Shri Puttaswamy, 2(a) to 2(c) are residing at No.95, Gokulam I Stage, K.R.S. Road, Mysore-570002.
... Respondents (R1, R2 (A)(B) & (C)-Served, unrepresented) This RFA is filed under Order 41 Rule 1 read with Section 96 of CPC against the judgment and decree dated 12.03.2010 passed in O.S.No.16119/2004 on the file of the IV Additional City Civil & Sessions Judge, Mayo Hall Unit, Bengaluru, decreeing the suit for recovery of money.
This appeal coming on orders this day, the Court made the following:
ORDER Though this appeal is listed for orders on Mis. Civil application Nos.4861/2011, 4862/2011 and 4863/2011, having noticed that the first respondent i.e., State Bank of India has been served and it has not entered appearance, this appeal is taken for final disposal.
2. Heard the appellant’s counsel.
3. The first respondent brought a suit against one Puttaswamy, first defendant in the said suit and appellant herein for recovery of a sum of Rs.51,834/- with interest.
The first defendant in the said suit was the principal borrower and the appellant is a guarantor to the said loan transaction. The appellant filed written statement stating that much before filing of the suit, first defendant had died on 20.08.2002. The appellant also mentioned the names of wife and children of first defendant in para 13 of his written statement and further contended that the suit against him alone was not maintainable. But, the trial Court having noticed that the first defendant was dead, proceeded to decree the suit against the appellant.
4. Learned counsel for the appellant submits that the decree in the suit itself was bad, because, it was filed against a dead person. The first defendant was the principal borrower, when he was not alive on the date of suit, the suit against appellant alone did not survive. The first respondent should have filed the suit against the legal representatives of principal borrower. The appellant was just a guarantor. In the absence of the principal borrower or the legal representatives of principal borrower the trial Court should not have entertained the suit. Therefore, judgment of the trial Court is bad.
5. If the judgment of the trial Court is perused, it becomes evident that in para 10 of its judgment, it has clearly noticed that the first defendant died on 20.08.2002, Suit was filed on 29.07.2004. The first respondent-Bank should not have filed the suit against the dead person. Even after the written statement was filed, the first respondent did not care to implead the legal representatives of principal borrower. Since the appellant is just a guarantor, in the absence of principal borrower or his legal representatives, suit against the guarantor alone is not maintainable. Decree could not have been passed against the guarantor/appellant. The suit was inherently bad. Therefore, the judgment of the trial Court cannot be sustained. Appeal is allowed. Impugned judgment is set aside. The suit is dismissed.
6. An amount of Rs.32,605/- deposited by the appellant at the time of admission i.e., on 20.04.2011 be refunded to the appellant.
7. Mis.Civil.Nos.4861/2011, 4862/2011 and 4863/2011 filed by the appellant actually do not survive, because, there is no need to make the legal representatives of deceased first defendant as parties to this appeal. Consequently, all these applications are dismissed.
Sd/- JUDGE KMV/-