Surendra Nath Kapoor and Others vs FAG Precision Bearings Ltd. and Others

Hon''ble Justice Murari Prasad Shrivastava

The present petition has been filed by the plaintiff Nos. 1 & 2 praying for recording the death of plaintiff No. 3 and causing an entry to be made on the record to the effect that the right to sue survives to the plaintiff Nos. 1 & 2 and for recording the death of defendant No. 4 and causing an entry to be made on the record to the effect that the right of plaintiff Nos. 1 & 2 to sue survives against the surviving defendants and in the alternative to exempt the plaintiff from necessity of substituting the legal representative of the deceased defendant No. 4. Contesting defendant No. 2 has opposed the prayer by filing affidavit-in-opposition. The learned Counsel, Mr. Purohit appearing for plaintiff Nos. 1 & 2 submits that in all 990 shares were purchased of which 660 shares were purchased by plaintiff No. 3 and the remaining 330 shares were purchased jointly by the plaintiff Nos. 1 & 2 and upon the defendant No. 1 refusing to register transfer of the said respective shares in favour of the plaintiffs on the purported ground of receiving a prohibitory order from income tax officer, defendant No. 3, plaintiff filed the present suit. Subsequently, defendant No. 1 registered 330 shares in favour of plaintiff No. 3 out of the 660 shares were purchased by him. He, further, submits that of the balance 660 shares which the defendant No. 1 failed and neglected to register, the 330 shares belonged jointly to plaintiff Nos. 1 & 2 and remaining 330 shares belonged to plaintiff No. 3 for which the shares of plaintiff Nos. 1 & 2 are quite distinct and separate from the shares belonging to plaintiff No. 3. Mr. Purohit further contends that plaintiff No. 3 died long time back but plaintiff Nos. 1 & 2 were not aware of his death. Under such circumstances the right to sue clearly survives to the plaintiff Nos. 1 & 2 in respect of their 330 shares which have not been registered. Mr. Purohit also submits that in spite of service of summons upon the defendants, the latter did not appear, for which pursuant to direction of this Hon''ble Court, fresh notice was issued upon the defendants and from the service return it came to the knowledge of the plaintiff Nos. 1 & 2 that defendant No. 4 had died. He refers to the letter of the defendant No. 1 dated 6.6.1987 which is annexure-D to the plaint and submits that the same clearly shows that defendant No. 4 was erstwhile holder of the shares purchased by plaintiff No. 3. Mr. Purohit also points to the letter dated 22.08.2011 of the defendant No. 1 addressed to plaintiff No. 1 and submits that defendant No. 4 is not concerned with the plaintiff Nos. 1 & 2 and accordingly the suit can proceed at the instance of the plaintiff Nos. 1 & 2 against the surviving defendants. He, further, refers to the provisions of rule 4 (4) of order 22 of the CPC and submits that the defendant No. 4 having appeared but not filed written statement, plaintiffs in the alternative may be exempted from the necessity of substituting the legal representatives of the defendant No. 4.

Mr. Dutta appearing for the defendant No. 2 on the other hand submits that the present application is wholly misconceived as the present suit has already abated by operation of law and no application has been preferred by the plaintiffs for setting aside abatement of the suit. He, further, submits that the instant suit was instituted on the basis of a common cause of action and upon demise of the plaintiff No. 3, the right to sue cannot survive upon the surviving plaintiff Nos. 1 & 2. He, further, submits that the said plaintiff Nos. 1 & 2 having failed to substitute the deceased plaintiff No. 4 by his legal heirs within the statutory period of limitation, suit has abated in its entirety. Mr. Dutta also contends that in the plaint specific reliefs have been prayed for against defendant No. 4 and as the heirs of the said deceased defendant No. 4 have not been substituted in his place, the present suit has abated in its entirety.

Upon consideration of the materials on record and submissions of learned Counsels for the parties, I find that the present suit was instituted by the plaintiffs upon defendant No. 1 refusing to register transfer of the 660 shares in favour of the plaintiffs out of which according to the plaintiffs, 330 shares belonged jointly to plaintiff Nos. 1 & 2 and the other 330 shares belonged to plaintiff No. 3. From the annexures to the plaint and petition it is clear that plaintiff Nos. 1 & 2 have no concern with the defendant No. 4 in respect of their 330 shares and they can very well proceed with the suit for obtaining reliefs as regards their 330 shares. So, even upon death of plaintiff No. 3 the right to sue survives to the plaintiff Nos. 1 & 2 as regards their separate 330 shares and accordingly the prayer of the plaintiff Nos. 1 & 2 in this regard should be allowed. Though it is true that reliefs have also been prayed for as against defendant No. 4, the annexures to the application of the plaintiffs clearly reveal that the defendant No. 4 had appeared upon receipt of service of summons but did not file written statement. Accordingly, in my opinion, the plaintiff Nos. 1 & 2 are entitled to exemption from the necessity of substituting the legal representatives of the said defendant No. 4 since deceased. Accordingly the death of plaintiff No. 3 be recorded and entry be made to the effect that the right to sue survives to the plaintiff Nos. 1 & 2 and the suit shall proceed at the instance of the said surviving plaintiff Nos. 1 & 2. The plaintiff Nos. 1 & 2 are exempted from the necessity of substituting the legal representatives of deceased defendant No. 4.

The application is thus disposed of. Department and parties are to act on a signed photocopy of this order on the usual undertakings.