IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO. 2727 OF 2006 Chhaya Rajiv Goswami & Anr. .... Appellants. vs. Oriental Bank of Commerce & Ors. ..... Respondents. Mr. H.E. Palwe, Advocate for the Appellants absent. Mr. M.S. Karnik & J.K. Naik for Respondent No. 1. Mr. Nilesh Patil for the Respondent No. 2. CORAM : A.S. OKA, J. DATE : 11TH APRIL, 2008. ORAL JUDGMENT : The submissions of the learned counsel for the parties were heard on 29.2.2008 and 4.3.2008. However, judgment could not be dictated on account of paucity of time. Today the appeal is kept for dictation of judgment. 2. The First Appeal is preferred by the original 1st and 2nd Defendants taking an exception to the judgment and decree dated 22.8.2006 passed by the learned Joint Civil Judge, Senior Division, Nashik in a suit filed by the 1st Respondent Bank. 3. According to the case of the 1st Respondent Bank, Dr. Rajiv Pandurang Gosavi was granted a loan of Rs. 3,50,000/- with interest thereon against various documents executed by the said borrower. The said Rajiv Pandurang Gosavi died on 1.4.2003. The 1st Appellant in this appeal is the widow of the said borrower and the 2nd Appellant is the minor daughter of the borrower. The 2nd Respondent in the appeal is the guarantor who allegedly guaranteed the repayment of the loan amount by the said borrower. The suit filed by the 1st Respondent proceeds on the assertion that the borrower died leaving behind moveable and immoveable assets in the hands of the appellants. The suit was resisted by the appellants by contending that the deceased borrower has not left any immoveable property in their hands and further denied that the deceased had left any moveable assets. In the written statement the appellants have disclosed that certain moveables like Maruti Car and Kinetic Scooter of the deceased borrower were taken in custody by the Finance Company. 4. The learned trial Judge recorded a finding that the appellants have inherited the properties of the deceased borrower. The operative part of the decree reads :- “1. The suit is decreed with costs. 2. The defendant No.1 in her personal capacity and as a natural guardian of defendant No. 2 and defendant No. 3 do hereby pay jointly and severally the amount of Rs. 3,67,014/- to the plaintiff alongwith interest at the rate Rs.9% per annum from the date of suit till realization. 3. Decree be drawn up accordingly. Dictated on the Dais and pronounced in the open Court.” 5. A very limited submission has been made by the learned counsel appearing for the appellants. He submitted that there cannot be any personal liability of the appellants to repay the loan advanced to the deceased borrower. His submission is that the liability of the appellants will be only to the extent of the property of the deceased coming to the appellants and hence there could not have been a personal decree against the appellants. It is submitted that the interest awarded by the trial Court is on the higher side. The learned counsel appearing for the 1st Respondent supported the impugned judgment and decree and submitted that admittedly the appellants have inherited certain assets held by the deceased borrower. The learned Advocate for the 2nd Respondent stated that he has not preferred any appeal. 6. I have carefully considered the submissions. It is obvious that the appellants were impleaded as party defendants in their capacity as the legal representatives of the deceased borrower. The appellants are Class I heirs of the deceased within the meaning of the Hindu Succession Act, 1956. It is, however, obvious that there cannot be any personal liability fastened agaisnt the appellants. Their liability to pay the decreetal amount will be only to the extent of the estate inherited by them from the deceased borrower. To that extent the operative part of the decree will have to be modified. In so far as the grant of interest at the rate of 9% is concerned, the agreed rate of interest was 15% per annum. Therefore, the discretion exercised by the trial Court under Section 34 of the Code of Civil Procedure, 1908 is proper and no interference is called for in that behalf. 7. Hence, I pass the following order :- (i) The clause (2) of the operative part of the judgment and decree is hereby substituted by the following : “The defendant nos. 1 to 3 do hereby pay jointly and severally the amount of Rs. 3,67,014/- to the plaintiff alongwith interest at the rate Rs.9% per annum from the date of suit till realization. However, it is clarified that the liability of the defendant nos. 1 and 2 shall be only to the extent of the estate of the deceased Dr. Rajiv Pandurang Gosavi inherited by the said defendants.” (ii) Rest of the impugned decree stands confirmed. (iii) There will be no order as to costs of this appeal. (iv) The Appeal is partly allowed in above terms. 8. Civil Application No. 432 of 2006 does not survive in view of the disposal of the appeal. ( A. S. Oka, J.)