SAROJ MAIRA v. STEELSONS PRIVATE LIMITED — 1974 DIGILAW 54 (DEL)

D. K. KAPUR, J. , (Oral) ( 1 ) THIS is an application under Order I, Rule 10 (2) read with Order 22, Rules 2 and 3 and Section 151 of the Code of Ciyil Procedure instituted by the legal heirs of Shri R. N. Maira in respect of a Company Petition No. 42 of 1973, which has been instituted in this Court by Shri R. N. Maira and another against M/s. Steelsons (P) Limited and others. The said Company Petition was before this Court when Shri R. N. Maira, the first petitionerp died and the second petitioner therein, Shri Jitender Nath Maira, decided at he would not prosecute the petition any further. On 17th September, 1973, no one appeared on behalf of the petitioners. Mr. G. R. Chopra, counsel for the respondent, stated that the first petitioner had died and the petition was incomplete and, therefore, should be consigned to the record room. I ordered accordingly. Later on, on the same date Mr. Satish Chandra stated that the petition could go on even in the absence of the legal representatives of the first petitioner and I indicated that he might apply under Section 151 of the Code of Civil Procedure and I also made it clear that the petition had not been disposed of. Later, the petition was listed on 1st February, 1974. On that date again, I observed that the petition should be consigned back to the record room as there was no petitioner before the Court. Now, the legal representatives of the first petitioner have moved the present application for the purpose of being impleaded as parties to the case. This application has been contested by the respondents and another application has also been moved on behalf of the respondents, which is C. A. No. 136 of 1974, in order to urge further grounds in support of the opposition. ( 2 ) THE first question for consideration is what is the procedure to be applied in a case like the present one when the petitioner dies. I am staling this because the second petitioner has in any case decided not to prosecute the petition. The procedure prescribed for suits is set out in Order 22 of the Code of Civil Procedure. There is no particular procedure prescribed for other petitions. I am staling this because the second petitioner has in any case decided not to prosecute the petition. The procedure prescribed for suits is set out in Order 22 of the Code of Civil Procedure. There is no particular procedure prescribed for other petitions. A petition like the present one, instituted under Section 397 and 398 of the Companies Act, 1956, is in the same position as a petition for winding up. In fact, the alternate prayer of the petition is that the company should be wound up. I therefore, find that the position of the petition on the death of the first petitioner and the withdrawal of the second petitioner is exactly that of an ordinary winding up petition. It is provided in Rule 101 and Rule 102 of the Company (Court) Rules that I even if the petitioner withdraw, a party can be substituted as a petitioner in an ordinary winding up petition. There is, however, no Rule governing the case of a petitioner dying. In fact, neither the 192 applicant nor the counsel for the respondents has been able to bring any case to my notice in which a petition under Section 397 or 398 has abated nor have they been able to bring any case to my notice in which a winding up petition has abated. I am, therefore, of the view that there is no reported case in The Law Reports of any case under Section 397 or 398 of the Companies Act having abated nor has any winding up petition abated. Such a petition might fail on account of there being none to prosecute it. But, if a party appears before the Court and is willing to prosecute the same, the only question which would remain to be seen would be whether the person concerned is competent to prosecute the same. For example, if a petitioning creditor in a winding up petition, based on non-payment of debts, dies, his legal heirs may very well claim to prosecute the same winding up petition on the ground that they inherited the claim of the deceased creditor. Similarly, another creditor might apply for substitution but he would not have to be a creditor. For example, if a petitioning creditor in a winding up petition, based on non-payment of debts, dies, his legal heirs may very well claim to prosecute the same winding up petition on the ground that they inherited the claim of the deceased creditor. Similarly, another creditor might apply for substitution but he would not have to be a creditor. The" mam question to be considered in this case arises on account of the peculiarity in the present case, which is that-according to the counsel for the respondents- the original petition itself was not competent. I will presently deal with this question. ( 3 ) I first mention some authorities cited by learned counsel for the, petitioner in support of the application. Reference has been made to the Supreme Court s judgment in "the Andhra Bank Ltd. Vs. R. Srinivasan and others", 1962, 3 S. C. R. 391 (1) and to a Full Bench decision of this court reported as "kedar Nath Vs. Ram Nath etc. ", 1973 Rajdhani Law Reporter 701 (2 ). The first of these cases was concerned with the competency of the Hyderabad Court to proceed with a suit in which the legal representatives of the deceased defendent did not submit to the jurisdiction of the Hyderabad Court. It was held that the suit in the Hyderabad Court having been competent in the first instance, did not render the suit incompetent by reason of the legal representatives of the defendant not submitting to the jurisdiction. In the second of these cases, it was held by this Court that a proceeding under the Rent Control Act, brought by a landlord against his tenant did not become not maintainable by reason of the death of the tenant on account of the fact that his heirs did not succeed to the tenancy as the deceased tenant was a statutory tenant. These cases have no bearing at all on the question which I have to decide. I It is not the competency of the court which is in question before me but the competency of the legal representatives to continue the proceedings. I have to decide whether there is any rule of law by which the legal representatives of a deceased petitioner can continue the proceedings. ( 4 ) COUNSEL for the applicant has REFERRED TO to Section 306 of the Indian Succession Act, 1925. I have to decide whether there is any rule of law by which the legal representatives of a deceased petitioner can continue the proceedings. ( 4 ) COUNSEL for the applicant has REFERRED TO to Section 306 of the Indian Succession Act, 1925. The said Section reads as follows : "306. All demands whatsoever and all rights to prosecute or defend any action or special proceeding existing in favour of or against a person at the, time of his decease, survive to and against his executors or administrators; except causes of action for defamation, assault, as defined in the Indian Penal Code, or other personal injuries not causing the death of the party; and except also cases where, after the death of the party, the relief sought could not be enjoyed or granting it would be nugatory. ( 5 ) HAVING reached the conclusion that the legal heirs of the late Shri R. N. Maira do succeed also to his right of action inrespect of this pending petition under Section 397 and 398 and Section 433 to the Companies Act, I now proceed to deal with the questions or objections formulated by Mr. Chopra on behalf of the respondents. ( 6 ) THE first objection is that on the death of Shri R. N. Maira, the original first petitioner, the legal representatives cannot have any right to prosecute the petition because Shri R. N. Maira himself was not a shareholder of the company and had no right to prosecute the petition. I think the answer to this question is that the right of the late Shri R. N. Maira, whatever it is, passes to the applicants. If the petition would have failed or might have failed because the late Shri R. N. Maira was not competent to institute it, then this petition will still fail because the applicants do not succeed to anything more than the legal estate held by the late Shri R. N. Maira at the time of his death. In other words, the original petition will not become more competent by the applicants being impleaded. It will only mean that the question of competency will be decided after due trial. I, therefore, disregard this obpection for the moment though it will still remain a question for controversy and judicial adjudication in the event of the applicants being substituted in the main petition. It will only mean that the question of competency will be decided after due trial. I, therefore, disregard this obpection for the moment though it will still remain a question for controversy and judicial adjudication in the event of the applicants being substituted in the main petition. ( 7 ) I now turn to the next objection. This is that the petitioners cannot be brought on the record, unless they first estabhshed their claim as legal representatives. It is urged by learned counsel for the respondents that in the Indian Succession Act, there is Section 214 which prohibits the passing of a decree in favour of a heir to a deceased person against a debtor of that person unless he has first obtained a succession certificate. He also refers to Section 370 wherein there are certain observations about the way in which a succession certificate can be obtained and there is restriction to getting a saccession certificate if letters of administration or probate can be obtained under Section 212 or Section 213. The legal position seems o be that a succession certificate can be obtained not only for a debt but also for securities. This is so stated in Section 370. Mr. Chopra urges that the restriction contained in Section 214 also applies to claims in respect of securities as defined in Section 370. I regret, I cannot accept this contention ; the prohibitory part of Section 214 is restricted to debts alote and not to claims mentioned in Section 370. The legal position is as follows; if, the estate of a deceased person is covered by Section 212 or 213, then the heirs have to get either letters of administration or probate. The heirs cannot get a succession certificate. This is so provided in Section 370. ( 8 ) ON the other hand, neither Section 212 or 213 applies to Hindus and others such as Buddhists, Sikhs etc. This means that ; n case the deceased is a Hindu or Sikh or Mohanircedan, then a probate or letters of administration is not necessary and a succession certificate may be obtained. In order to proceed in Court, the legal heirs will have to get a succession certificate, if they are proceeding against a debtor. This is so provided in Section 214. On the other hand, in respect of other property evep a succession certificate is not necessary. In order to proceed in Court, the legal heirs will have to get a succession certificate, if they are proceeding against a debtor. This is so provided in Section 214. On the other hand, in respect of other property evep a succession certificate is not necessary. But, in order to avoid disputes, -it is sometimes necessary to obtain a succession certificate even in respect of securities. It is not mandatory, under Section 214 but may be obtained under Section 370. I, therefore, come to the conclusion that no succession certificate is necessary before the applicants can be impleaded as legal representatives. I may point out that no case has been brought to my notice by cousel for the respondents showing that a succession certificate is necessary before the legal representatives can be impleaded. ( 9 ) MY conclusion amounts to this that applicants can be impleaded as legal representatives even though Order 22 does not apply because they are entitled to succeed to the estate of the deceased. ( 10 ) ANOTHER objection raised by "mr. Chopra is to the effect that the petition is no longer pending and has been consigned to the record room. I have already made it clear, in my orders previously passed, that the petition is not disposed of and that the case was only consigned to the record room as there was no petitioner before the Court. Once somebody is impleaded, or some one wants to certicute the petition, there is no impediment to the petition being heard further. In these circumstances, I see no reason why the petition for substitution should not be allowed. I accordingly permit the applicants to be impleaded as legal representatives and to be brought on record in place of the late Shri R. N. Maira and proceed with the petition. As the point was quite a novel one, I did not make any order as to costs.