Allowed

Sri Ramdev Construction Pvtltd v. Mr.P.Vagthavarmal Pandya

Madras HC14 Aug 2020A/167/2017

Case brief

AI extract

What is this about?

The court allowed applications to bring legal representatives of deceased defendants on record and to set aside suit abatement. It held that a charge created by payment towards purchase of immovable property survives death, unlike personal causes of action.

What did the court decide?

Applications to bring legal representatives on record and to set aside abatement were allowed.

Sri Ramdev Construction Pvtltd Vs Mr.P.Vagthavarmal Pandya — Property and Title | Madras HC (2020)

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APPLICATION Nos.167,168 and 169 OF 2017 IN C.S.NO.43 OF 2014

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APPLICATION Nos.167,168 and 169 OF 2017 IN

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C.S.NO.43 OF 2014

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M.GOVINDARAJ, J.

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A.No.169 of 2017

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The Application No. 169 of 2017 is filed to bring on record the

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respondents 3 to 6, being the legal representatives of the deceased defendants

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1 and 2 a party defendants 3 to 6 in the suit C.S.No.43 of 2014.

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Learned counsel appearing for the respondents/defendants 1 and 2

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would contend that there is no right to sue survives on the legal heirs of the defendants 1 and 2. It is submitted by the learned counsel that a sale agreement was entered between the Power of Attorney R.Kishore kumar on behalf of the principle defendants 1 and 2 on 11.07.2012. The said Power of

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Attorney alleged to have received Rs.78,58,000/- and swallowed that money. The Power of Attorney had committed suicide and is no more. When the

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Power of Attorney himself died, there is no right to sue survives against the

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1/5

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http://www.judis.nic.in

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APPLICATION Nos.167,168 and 169 OF 2017 IN C.S.NO.43 OF 2014

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defendants who are no more.

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If that is the case, there is no right to sue survives against the legal

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heirs of the defendants 1 and 2. As per Or.22 R.1 and 2 no right to sue

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survives the application to set aside abatement is not sustainable. Secondly,

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the suit claim is a personal right which cannot be enforced against proposed

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parties. It is only a suit for recovery of money and not a right to property.

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Therefore, the suit is not maintainable as against the proposed defendants.

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The applications should be dismissed.

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I have considered the submissions.

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Admittedly, the execution of Power of Attorney is admitted.

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Execution of sale agreement is also admitted. The payment of money by the petitioners to the Power of Attorney by way of cheque is also admitted. The only question is whether the amount paid has been received by the defendants

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1 and 2 or swindled by Power of Attorney is the dispute. Otherwise, the

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2/5

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http://www.judis.nic.in

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APPLICATION Nos.167,168 and 169 OF 2017 IN C.S.NO.43 OF 2014

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payment of money is not disputed and as per the condition of the sale agreement the defaulting party shall pay a sum of Rs.40,00,000/-.

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Once money is paid towards advance of sale consideration for

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purchase of a immovable property a charge is created over the property. When a charge is created on the property, it goes along with the property and the person inheriting the property has to discharge the debts. As contended by the learned counsel for the respondents it is not right affecting person to die with him. The Latin maxim “ action personalis moritur cum persona” will not apply to this. A suit for decree of divorce will not survive after the death of one of the parties. In other words claiming vindictive or penal damages will die with the persons but actual pecuniary loss is suffered by party to the

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contract will survive for recovery.

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In the present case, the suit was initiated during the life time of the

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defendants and whoever inherits right over the property will have to clear the

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debts. In that view of the matter, the right to survive through the proposed

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http://www.judis.nic.in

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APPLICATION Nos.167,168 and 169 OF 2017 IN C.S.NO.43 OF 2014

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defendants who are the legal heirs inheriting the immovable property for which part of sale consideration was received and therefore the judgment relied on by the learned counsel for the respondent reported in AIR 1921

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Madras P(IA) will not apply to the present case. Accordingly, the Application No. 169 of 2017 to bring on record the respondents 3 to 6, being the legal representatives of the deceased defendants 1 and 2 a party defendants 3 to 6 in the suit C.S.No.43 of 2014 is allowed.

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A.Nos.167 and 168 of 2017:The petitioner has given specified reasons for the delay. Having satisfied with the reasons given in the affidavit, the delay of 110 days in filing the Application No. 167 of 2017 to set aside the abatement of the suit C.S.No.43/2014 as cause due to death of the defendants 1 and 2 is allowed. Accordingly, Application No.168 of 2017 to set aside the abatement

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of the suit C.S.No.43 of 2014 as caused due to death of the defendants 1 and

2 is allowed.

14.08.2020

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http://www.judis.nic.in

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APPLICATION Nos.167,168 and 169 OF 2017 IN C.S.NO.43 OF 2014

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M.GOVINDARAJ, J.

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kpr

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APPLICATION Nos.167,168 and 169 OF 2017
IN
C.S.NO.43 OF 2014
14.08.2020

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5/5

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http://www.judis.nic.in

Sri Ramdev Construction Pvtltd v. Mr.P.Vagthavarmal Pandya

Case brief

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Sri Ramdev Construction Pvtltd v. Mr.P.Vagthavarmal Pandya

Case brief

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Sri Ramdev Construction Pvtltd Vs Mr.P.Vagthavarmal Pandya