: 1 : nms-3802-07=.sxw USJ IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO. 3802 OF 2007 IN SUIT NO. 2296 OF 1989 Dena Bank .. Plaintiffs v/s. M/s. Grace alone printing unit & Ors. .. Defendants ......... Mr. Bhalwal and Mr. P.N. Singh i/b M/s. Vyas & Bhalwal for the plaintiffs Ms. Srilakshmi Peddada for defendant nos. 3 and 4. Mr. Ashish Rao i/b M.P. Vashi for defendant nos. 1 and 2. ......... CORAM : R.Y.GANOO, J. DATE : 6th DECEMBER, 2010 P.C. : 1. The plaintiffs have taken out this motion for setting aside order dated 31st August, 2007 by which the suit came to be dismissed so far as defendant nos. 3 and 4 are concerned. Defendant nos. 3 and 4 have filed affidavit opposing the motion. Few facts are required to be stated to dispose of this motion as they are very peculiar. 2. Defendant no.2 is the proprietor of defendant no.1. She had borrowed money from the plaintiffs in or about 14th October, 1987 for the purposes of carrying on business of defendant no.1 on the strength : 2 : nms-3802-07=.sxw of promissory note dated 14th October, 1987 and the other facilities which were granted by plaintiffs on 14th October, 1987 itself. Husband of defendant no.2 by name Mr. Dinkar Sakrikar was the guarantor in regard to this loan transaction. Neither defendant nos. 1 and 2 nor the said guarantor paid the dues as and when they were required to be paid and that is why plaintiffs by notice dated 31st August, 1988 demanded the dues from defendant nos. 1 and 2 and Mr. Dinkar Sakrikar, the guarantor. The said notice was not responded to. Said Dinkar Sakrikar expired on 1st January, 1989. The plaintiffs at the time of institution of this suit on 2nd June, 1989 for the recovery of dues, instituted the suit against the firm defendant no. 1 and defendant no.2. is the proprietor. The averments in paragraph 1 of the plaint would clearly go to show that the plaintiffs were knowing at the time of filing of the suit that Dinkar Sakrikar had expired. Despite this, all the heirs of said Dinkar were not brought on record at the time of filing of the suit in their capacity as heirs of guarantors. Subsequently, on 28th January, 1992 plaintiffs took out Chamber Summons No.80 of 1992 and prayed that present defendant nos.3 and 4 should be joined as heirs of guarantor because defendant no.2 was already on record as an heir of the guarantor. This chamber summons was made absolute on 27th March, 1992 by passing the following order. : 3 : nms-3802-07=.sxw “Chamber summons is made absolute in terms of prayer clause (a). Amendment to be carried out within 2 weeks. No order as to costs.” 3. Defendant nos.3 and 4 were brought on record. They filed their written statement in or about July, 2001 and contested the suit. The suit was taken up for recording of evidence and on 31st August, 2007 this Court passed an order directing plaintiffs to file evidence affidavit as well as documents on or before 10th September, 2007. It was also ordered that if this job is not done, the suit would stand dismissed for want of prosecution. It is required to be mentioned that decree was already passed against defendant nos. 1 and 2 prior to passing of this order on 31st August, 2007. 4. The Plaintiffs did not comply with this order dated 31st August, 2007 and consequently on account of self operative order, the suit came to be dismissed as against defendant nos. 3 and 4. The plaintiffs have therefore taken out this notice of motion for restoration of the suit. 5. Learned Counsel Mr. Bhalwal appearing on behalf of the plaintiffs submitted that for the reasons mentioned in the affidavit in suport of the notice of motion, plaintiffs could not comply with the order of filing : 4 : nms-3802-07=.sxw of evidence affidavit and documents. He submitted that between 31st August, 2007 and 10th September, 2007, the documents could not be traced in the bank though the evidence affidavit was ready. He, therefore, submitted that the plaintiffs bank was prevented from filing evidence affidavit as well as compilation of documents. He pointed out the affidavit in support of the notice of motion and submitted that the evidence affidavit and compilation of documents is now ready and that Court should take lenient view and allow the plaintiffs to prove its case against the defendants who are ultimately the heirs of guarantor, Dinkar. 6. Learned Counsel appearing on behalf of defendant nos. 3 and 4 Mrs. Peddada submitted that the bank was negligent in attending to the matter and therefore this suit should not be restored. She had submitted that this Court should not show any indulgence in favour of the plaintiffs. She had also submitted that joining of defendant nos. 3 and 4, by order passed in chamber summons, itself was not permissible in as much as the said Chamber Summons No.80 of 1992 was taken out beyond the period of limitation and therefore, the claim as against defendant nos. 3 and 4 in their capacity as heirs of the guarantor had become time barred and, therefore, the defendants were protected by provisions of the Limitation Act and, therefore, if the plaintiffs could not : 5 : nms-3802-07=.sxw have recovered the dues from defendant nos. 3 and 4 on the ground of limitation and hence there is no question of restoration of a suit though plaintiffs may have qua produced the appropriate evidence affidavit and compilation of documents. She had submitted that defendant nos. 3 and 4 were wrongfully brought on record and therefore the suit should not be restored. She pointed out that defendant nos. 3 and 4 have raised plea that the suit against defendant nos. 3 and 4 is beyond the period of limitation. 7. I have considered the relevant dates and the relevant provisions of the Limitation Act and I am inclined to accept the submission of learned Counsel for defendant nos. 3 and 4. The documents on the strength of which the loan was granted are of 14th October, 1987. The first document is in the nature of a promissory note and the other document is in the nature of loan on hypothecation of goods. The grant of loan was done on 14th October, 1987. The deed of guarantee was also executed by Dinkar on 14th October, 1987. Looking to the provisions of Article 35 of the Limitation Act, the period of limitation was 3 years for recovery of this loan amount. No doubt, so far as the principal debtor i.e. defendant nos.1 and 2 are concerned, suit came to be filed in time i.e. on 2nd June, 1989. The suit was not filed against the guarantor Dinkar because Dinkar had expired on 1st January, 1989 but : 6 : nms-3802-07=.sxw then it was possible for the plaintiffs to investigate as to who are the heirs of said Dinkar and while filing the suit against defendant nos. 1 and 2 all the heirs of Dinkar could have been joined in the suit. The plaintiffs took out the chamber summons on 28th January, 1992. Even if we take it that the cause of action against the heirs of Dinkar could commence on his death i.e. on 1st January, 1989 and the period of 3 years could be treated as period of limitation, still the plaintiffs ought to have taken out the chamber summons for joining of the present defendant nos. 3 and 4 within a period of 3 years i.e. on or before 1st January, 1992. For these reasons, filing of the chamber summons on 28th January, 1992 was beyond the period of limitation with reference to the first date of cause of action namely 14th October, 1987 or an alternate date giving maximum concession to the defendants. If joining of defendant nos. 3 and 4 was beyond the period of limitation, such a course itself was not permissible and, therefore, the claim against defendant nos. 3 and 4 in their capacity as heirs of Dinkar got lapsed on account of the law of limitation. Considering this factor, I am inclined to observe that plaintiffs have failed to make out good cause for setting aside the order by which the suit was dismissed. It is well settled principle that if a party comes to the Court and seeks an order in the nature of restoration of the suit the Court is required to consider generally the merits of the matter. For the reasons mentioned : 7 : nms-3802-07=.sxw aforesaid, I hold that plaintiffs not been able to make out a case for restoration of suit. On this ground, I am inclined to dismiss the present notice of motion. Hence, following order is passed to dispose of the notice of motion. ORDER (i) Notice of motion is dismissed. There shall be no order as to costs. (R.Y.GANOO, J.)