Bombay Mercantile Co-operative Bank Limited vs Pravinaben Shanindra Kantawala and Others

K.S. Jhaveri, J.—By way of this appeal, the Appellant challenged the judgment and order dated 23.08.1988, passed by the Executing Court, in Darkhast Application No. 283 of 1984, whereby the learned Judge has allowed Objection application at Exhibit-8 filed by the present Respondent Nos. 1/1 to 1/3.

The facts of the case are that the present Appellant is a Co-operative Bank and deceased Shanindra Manubhai Kantawala was a member and constituent of the said Bank, against whom Lavad Case No. 1088 of 1982 was filed by the Appellant to recover the principal amount of Rs. 4,3000/- together with running interest at the rate of 13.5% from May 3, 1982 till realization and for cost of Rs. 175/-. The said suit came to be decreed by a judgment and award of the Board of Nominees for a sum of Rs. 9,930.85 and directed that if the judgment-debtors committed any default in making the payment of the decreetal amount upto 4.12.1982, the decreetal amount may be recovered by the Appellant Bank from the properties inherited by heirs of deceased principal debtor Shanindra Manubhai Kantawal and also from the person and properties of judgment-debtors No. 2,3 & 4. The judgment-debtors failed to pay the said amount on or before 4.12.1982.

2.1. Therefore, the Appellant bank filed Execution Application No. 283 of 1984 in the City Civil Court, Ahmedabad, for recovery of Rs. 11,674.70 Ps. and to issue a Jangam warrant against the properties of the judgment-debtors. When such Jangam warrant was sought to be executed by attaching the movable properties of Respondent No. 1/1 to 1/3, the Respondent No. 1/1 gave a cheque of Rs. 11,687.20 Ps. In favour of the Registrar, City Civil Court, Ahmedabad. Thereafter, on 2.8.1984, the Respondent No. 1/1 to 1/3 filed their objections at Exh.8. The Executing Court after perusing the record, vide judgment and order dated 23.8.1988, allowed the objections filed by the Respondent Nos. 1/1 to 1/3 at Exh.8 and directed the Appellant bank to return the cheque given by Respondent No. 1/1. The Executing Court further directed that Jangam warrant which is obtained by the Appellant Bank against the Respondent Nos. 1/1 to 1/3 fails and the Appellant bank should be at liberty to prosecute the said warrant against guarantors i.e. Respondent Nos. 2 to 4. Hence, this appeal.

Heard the learned Advocates for respective parties.

The Executing Court while deciding the matter has framed following issues:

(1) Whether the opponent Nos. 1/1, 1 /2 and 1/3 have inherited property of deceased Shanindra Kaqntawala ? If yes, what are the properties inherited by them ?

(ii) Whether the Opponents 1/1 to 1/3 prove that the business of caterers in name of Anand Caterers was their properietory business and deceased had no interest?

(iii) Whether the Opponents 1/1 to 1/3 prove that flat in which they stay belong to them exclusively and deceased Shanindra had no interest therein ?

(iv) Whether the Opponents 1/1 to 1/3 prove that the movables in the said flat are of their exclusive ownership and deceased had no right, title, share or interest therein ?

(v) Whether the opponent No. 1/1 proves that cheque for Rs. 11687/20 Ps. dt. 30.7.84 was obtained by threat ?

(vi) If yes, whether the opponent No. 1/1 is entitled to get back the cheque of its amount back ?

(vii) Whether the opponent Nos. 1/2 and 1/3 or any of them is liable to pay the debt of Shanindra under pious obligation under Hindu Law ?

(viii) Whether the opponents Nos. 1/1 to 1/3 or any of them is not bound to pay or liable for the award amount sought to be recovered ?

(ix) Whether the opponents Nos. 1/1 to 1/3 can without obtaining probate of the alleged will can claim that the deceased had no share, right, title or interest in the property immovable situated at Baroda ?

(x) What over ?

The trial Court while considering the issue has observed regarding issue No. 3 that the the defective character of the construction work carried out by the Plaintiff and it is the duty of the Defendant No. 1 to have examined its Engineer who was appointed to more or less decide such points. The trial Court further observed that the

The trial Court while considering the issues has observed that the deceased was suffering from cancer in second stage and was in precarious financial condition and there is not an iota of evidence produced by the Appellant-bank to show that deceased had purchased or acquired any immovable property in Ahmedabad. In this regard Defendant No. 1 was produced a certificate regarding allotment of flat in her name. The Defendant No. 1 has deposed in her cross examination that she was independently carrying on catering business in the name of Ananad Caterers from 1970. She has also deposed that she was in all earning of Rs. 1200/- per month. The trial Court has observed that considering the educational qualification, there was no reason to doubt her independent personal income of Rs. 1200/- per month and from such income it cannot be said to be difficult to acquire a flat or two in co-operative housing society where payment would be made by installments. From such income in course of years household articles and furnitures can also be acquired. The Defendant No. 1 also produced a certificate of society showing that the flat was allotted to her and it stands in her name. The trial Court further observed that at the time of execution, Defendant No. 1 did protest and she presented objection application to the bailiff and she has given cheque under specific protest. The trial Court further held that when it is found that legal heirs of deceased have not inherited any immovable or movable property of deceased, they are not liable to pay decreetal amount and Defendant No. 1 would be entitled to get back the cheque or amount.

The trial Court further observed that it is found from the record that heirs of deceased Shanindra Kantawal have not inherited any property either immovable or movable whatsoever from the deceased, or from any ancestral joint family property. Therefore, in view of the obserations in para(7) of 24 GLR, page 256, Defendant No. 2 cannot be considered liable to pay decreetal amount of Appellant bank. The trail Court also observed that the Defendant No. 1/1 to 1/3 have not inherited any immovable property at Vadodara from deceased Shanindra. Therefore, the trial Court held that the heirs are not required to obtain probate.

As a result of hearing and upon perusing the record, it has come on record that the present Respondent Nos. 1/1 to 1/3 have not inherited any property from the deceased Shanindra Kantawala. There is no evidence produced by the Appellant bank before the Executing Court from which it can even be remotely inferred that deceased Shanindra had purchased or acquired any immovable property in Ahmedabad.

In that view of the matter, I am of the opinion that the view taken by the Executing court is just and proper. Therefore, this appeal deserves to be dismissed. Hence, the same is dismissed.