An unsecured loan is given to a person through banking channel and in repayment, borrower gave a post dated cheque, the borrower died before presentation of the cheque in the bank, cheque returned as account frozen.
Loan account of borrower is maintained in the Audited books of lender.
How to recover the amount specially when lender does not know today whether legal heirs got any estate in inheritance from the deceased or not. Two citations have come to my knowledge:
1. Govindammal and Anr. vs. Bhuvaneswari Financing Corporation (19.10.2001 - MADHC) AIR2002Mad296 or MANU/TN/0683/2001 or at sight https://indiankanoon.org/doc/1382752/
2. Malathi vs M.Chandran on 11 March, 2020 At sight https://indiankanoon.org/doc/19661394/
In these two citations it is stated that if lender does not give details of inherited estate of deceased in pleading, suit can not be maintained against legal heirs of deceased borrower.
Suppose after expiring limitation of 3 years, if legal heirs got the deceased property from anywhere, no use for lender, as limitation expires.
If suit is filed today in court, that will be dismissed as no details in mentioned in the pleadings about property of deceased, and it will be dismissed, and if in future, the legal heirs get even if any property from the deceased, that will be of no use of lender as suit has already been dismissed.
I have seen in cpc “Order 21 Rule 41(2) further empowers the Court to direct the judgment debtor to file an affidavit stating the particulars of the assets of the judgment debtor.”
Please let me know 1. any citation/law etc which overrules above two citations
2. Is there any rule that suit can be maintained without pleading of properties of deceased, and affidavit should be taken from the legal heirs that they have not got any property from the deceased borrower and if in future they get any property from the deceased borrower, the same will be utilized in paying for the debt of lender.
3.Any other remedy in given situation.
1 Answer from Attorneys
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