PLJ 2014 Karachi
Present: Muhammad Ali Mazhar, J.
versus
Suit No. B-62 and C.M.A. No. 11385 of 2012, decided on 28.8.2013.
----S. 9--Contract Act, (IX of 1872), S. 129--Civil Procedure Code, (V of 1908), O. I, R. 10--Suit for recovery against dead person--Application for impleading legal heirs--Personal guarantee given by an individual can never be considered as binding upon legal heirs--Legal heirs were neither aware nor deceased ever disclosed about any such guarantee--Contract of continuing guarantee--Question of--Whether a contract is a contract of continuing guarantee--Validity--Continuing guarantee can be revoked by surety as to future transaction by notice to creditor--In absence of any contract to contrary does not mean hold responsible the legal heirs of deceased guarantor as there is no contract with legal heirs--Request of bank for joining legal heirs in suit as necessary and proper party was found to be tenable with direction to make corresponding amendment--Instant case is not case of any mortgaged property by deceased but it is case of guarantee which was automatically revoked upon death of guarantor by fiction of law--Liability of surety to pay on behalf of principal debtor where decree was passed or defendant was directed to make payment of amount--Neither any demand was made in his life time for payment nor any suit was instituted for recovery of any demand or liability arising from documents of guarantee nor any judgment and or decree was passed in the life time of deceased--Neither legal heirs of deceased were proper party nor necessary party in the suit--Plaintiff had failed to figure out any cause of action against legal heirs--Application was dismissed. [Pp. 62, 63, 64 & 65] A, C, E, F & G
----S. 131--Revocation of continuing guarantee on surety's death--Documents executed for hypothecation of moveable and immoveable properties--Guarantee was executed in his lifetime--Whether any demand was raised against deceased guarantor in his life time though in guarantee by making demand for payment of defaulted amount upon deceased guarantor. [P. 62] B
Criminal Procedure Code, 1898 (V of 1898)--
----S. 514-A--Forfeiture of bond--Civil and criminal law both are two different genera or species of law--When any surety to bond dies, Court by whose order whom such security was demanded to furnish fresh security in accordance with direction of original order. [P. 63] D
Date of hearing: 7.5.2013.
Order
The plaintiff has brought this application under Order I Rule 10, C.P.C. for impleading the legal heirs of Defendant No. 3.
2. The brief facts are that the plaintiff has filed this suit under Section 9 of Financial Institutions (Recovery of Finances) Ordinance 2001 for the recovery of Rs. 84,539,865.95. The Defendant No. 3 died on 30.8.2011 and the suit against him was filed after his death and on the application of the legal heirs, the name of Defendant No. 3 was deleted from the array of the defendants. Now the plaintiff has filed this application under Order I Rule 10, C.P.C. with the prayer that the legal heirs of the Defendant No. 3 may be impleaded to honour the guarantee furnished by their predecessor in interest.
3. The learned counsel for the plaintiff argued that the deceased Defendant No. 3 had executed a guarantee marked "X-1" to the plaint at pages 863 to 867 and two witnesses had also signed the same. Clause 17 of the personal guarantee clearly stated that in the event of his death his successors will be liable. He referred to Section 131 of the Contract Act which inter alia provides that the death of a surety revokes the continuing guarantee but only in the absence of a contract to the contrary. It was also contended that if a legal proceeding is filed against a dead person, even then the legal heirs can be got joined in his place. Merely because the death of Defendant No. 3 which was reported in one or more newspapers, it does not mean that the Bank had become aware of the fact of death of Defendant No. 3 which took place on 30.8.2011 while the suit was filed on 12.9.2012. In support of his argument, the learned counsel for the plaintiff relied upon the following case law.
(1) 2008 CLD 552 (First Women Bank Ltd. v. Mrs.Afifa Iftikhar & 2 others). Sections 126 and 128 of the Contract Act. Even where contract had become unenforceable against the principal borrower yet the guarantor be liable for surety executed by him.
(2) 2005 SCMR 72 (Rafique Hazquel Masih v. Bank Alfalah Ltd, & others). Liability of surety under Section 128 of Contract Act, 1872, is co-extensive with that of the principal debtor, unless it was otherwise provided by the contract.
(3) PLD 2003 Lahore
(4) 2003 CLD 1788 (M/s.Habib Bank Ltd. v. M/s.Indus Lenentose (Pvt.) Ltd. and others). Order I Rule 10, C.P.C. Suit for recovery of loan amount. Factum of demise of mortgagor-defendant prior to filing of suit came into knowledge of Bank from leave to defend application filed by other defendants. After demise of mortgagor-defendant, whatever right she had in mortgaged property, same had devolved upon her legal heirs. Request of Bank for joining legal heirs in suit as necessary and proper party within scope of Order I, Rule 10, CPC.
4. On the contrary, the learned counsel for the legal heirs of the Defendant No. 3 argued that the so-called letter of personal guarantee dated 16.3.2006 is a manipulated and forged document and more particularly the last page has been pasted from somewhere else. The financial facilities in question were offered to the Defendant No. 1 on 10.08.2010 then how the personal guarantee could be executed more than four years ago, therefore, it is established beyond any doubt that the Plaintiff/Bank has used some old and expired personal guarantee. It was further averred that all the legal heirs of late Defendant No. 3 are major and are running their own business separately, and are not the customer, borrower, mortgagor of the plaintiff, hence they cannot be held liable as successors in respect of the alleged so-called liabilities of the Defendants. The personal guarantee dies with the person, moreover, the so-called personal guarantee was valid only for one year from 16.3.2006 and ended with the expiration of the particular financial year. The personal guarantee given by an individual can never be considered as binding upon his legal heirs. The legal heirs were neither aware nor their deceased father ever disclosed about any such guarantee. It is well settled principle of law that any agreement, contract or deed which is contrary to any law, is considered to be null and void, therefore, the aforesaid so-called personal guarantee is in gross violation of Sections 23 and 131 of the Contract Act, which provide that in case of death of a surety, the surety stands revoked immediately, hence in view of this legal position, the answering legal heirs are not liable for any so-called consequences of the fabricated personal guarantee. In support of his arguments, the learned counsel relied upon following case law:--
(1) 2007 CLD 1205 (Muslim Commercial Bank v. East & Exports (Pvt.) Ltd. & others). The contract of surety ship/guarantee is to be construed according to the terms mentioned therein and must be construed strictly so that no liability is imposed on the surety, which is not clearly and distinctively covered by the terms of agreement. Case of `Blest v. Brown' 1862 4 De GF&J 367, can be referred in this respect. Further the contract of guarantee, is required under law to be specific identifiable, devoid of uncertainty. Ref: Law of Guarantees (Second Edition) by Geraldine Mary Andrews and Richard Millett, where at pages 164 and 165. It has been expressed:--
"It is possible for the guarantee to be limited as to the type of principle transaction guaranteed. If the principal transaction intended to be the subject of the guarantee is not clearly identified, the guarantee may be void for uncertainty, such as where a guarantee for the performance of the lessee's obligations under a lease could reasonably refer to two leases. Where the guarantee refers to a particular transaction, the surety will not be liable for a different transaction or one outside the scope of that guarantee, such as where the guarantee relates to a transaction or a given amount but the transaction proceeds for a larger amount, or where the creditor advances monies to the principal under a different facility to the one identified in the guarantee, or where the guarantee is limited to banking transactions and facilities and the creditor owed money in respect of debt discounting goods."
(2) 2009 CLD 1476 (Mst.Fayyazi Begum and 6 others v. Ali Hassan and another). Sections 126, 131, 135 and 139. Surety bond. Death of surety before any direction or decree was passed for the recovery of the amount from the defendant. Effect. Such bond was the paramount document as rights and obligations of the surety, could be determined on the basis of surety bond alone. No amount was determined against the defendant during the life time of the surety. Surety died before any direction or a decree was passed for the recovery of the amount from the defendant. Liability of the surety to pay on behalf of the principal debtor as per the surety bond arose only where the decree was passed or the defendant was directed to make payment of the amount. Parvatibai v. Vinayak Balwant AIR 1939 Bom. 23; Narayan Ramchandra Bhagwat v. Markandya Tukaram and another AIR 1959 Bom. 516 and T.N. and Q Bank v. Official Assignee AIR 1940 Mad.
5. Heard the arguments. It is an admitted position that the Defendant No. 3 Khalid Iqbal expired on 30.8.2011, while the suit against him was filed on 12.9.2012 in this Court, which shows that when the suit was filed against the Defendant No. 3 it was against a dead person. On 22.10.2012 the plaintiffs counsel filed amended title showing the name of the legal heirs of deceased Defendant No. 3. One of the legal heirs filed an application under Order I Rule 10(2), CPC (CMA No. 10229/2012) in which he requested that the name of the Defendant No. 3 be deleted from the array of the defendants. On 25.2.2013 after hearing the arguments the name of the Defendant No. 3 was deleted and on the same date the plaintiffs application (CMA No. 11385/2012) was fixed for orders in which it was prayed that the legal heirs of Defendant No. 3 be impleaded and joined as defendants. So far as the present application is concerned, it is to be seen first whether the Defendant No. 3 who expired much earlier from the date of the institution of this suit could be impleaded. The answer is in negative. The suit could not have been filed against a dead person and without passing any order by this Court whether the plaintiff has any cause of action against the legal heirs or not, they cannot be impleaded. The actual cause of concern for making this application is the indenture of guarantee available, which is a personal guarantee of the deceased Defendant No. 3 singed by him on 16.3.2006. The main objective of making this application against legal heirs is Clause 17 of the guarantee in which the deceased defendant agreed that the guarantee shall be binding on its successor-in-interest. The learned counsel for the legal heirs vigorously disputed the guarantee document and argued that after second page of guarantee which is available at page-865 another page was added by the plaintiff, which is available at page-867 which made the entire document suspicious. This is matter of record that the guarantee ended at page-865 with signatures of two guarantors including the deceased Defendant No. 3, but another page with the insertion of clause 18 and with the names and signatures of the same guarantors with witnesses is appended without showing any justification as to what was the rationale to add third page or an additional page with the indenture of guarantee. The guarantee was signed in the month of March, 2006, but the suit was filed by the plaintiff under Section 9 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 on the basis of cause of action accrued in the month of August, 2010 and onward. The details of cause of action are mentioned in Paragraph 24 of the plaint. The sanction letter dated 10.8.2010 annexure "A" to the plaint communicated to the Defendant No. 1 by the plaintiff refers to the offer letter dated 31.8.2009 in which besides, showing the names of guarantors from Defendant No. 1's directors, the names of other guarantors viz. Khalid Iqbal (deceased Defendant No. 3), Daanish Javed and Javed Iqbal are also mentioned which makes it clear beyond any shadow of doubt that the deceased Defendant No. 3 was not director of the Defendant No. 1, but he only stood a guarantor. The main focus of arguments advanced by the learned counsel for the plaintiff was on Section 131 of the Contract Act that the death of the surety revokes the continuing guarantee only in absence of any contract to the contrary and he heavily relied upon Clause 17 of the guarantee document according to which, despite death of Defendant No. 3, his legal heirs are liable to make the losses good as their predecessor-in-interest made the guarantee binding on his legal heirs.
6. Before proceeding ahead, it is necessary to examine what is actually a contract of guarantee. Under Section 126 of the Contract Act a contract of guarantee is a contract to perform promise or discharge liability of a third person in case of his default. The person who gives guarantee is called the surety. The person in respect of whose favour the guarantee is given is called the principal debtor and the person to whom the guarantee is given is called the creditor. The contract of guarantee is to be construed according to the terms and conditions mentioned in the indenture of guarantee and it must be construed strictly so that no liability imposed on the surety, which is not clearly and distinctively covered by the terms of agreement. The terms of guarantee would demonstrate that the guarantor has bound himself to indemnify the creditor. Under Section 127, it is provided that anything done or any promise is made for the benefit of principal debtor may be sufficient consideration to the surety for giving the guarantee. It is well settled that the contract of guarantee cannot be enforced unless there is some consideration for the guarantee and the contract of guarantee must be based on consideration and if the consideration so specified is not brought on record then Court cannot assume such consideration.
7. Now I would like to refer to the contract of continuing guarantee. According to Section 129 of the Contract Act a guarantee which extends a series of transactions is called a continuing guarantee. The question whether a contract is a contact of continuing guarantee or not this can only be determined with a reference to whole instrument. A continuing guarantee can be revoked by the surety as to future transaction by notice to the creditor as provided under Section 130 of the Contract Act. Section 130 provides the power of revocation of surety by the surety in his lifetime after due notice to creditor while Section 131 envisages the revocation of continuing guarantee by surety's death and stipulates that the death of the surety operates, in the absence of any contract to the contrary, as a revocation of continuing guarantee so far as regards the future transactions. The condition "in absence of any contract to the contrary" has much importance and significance for the revocation of continuing guarantee on surety's death. The counsel for the plaintiff wants to implead the legal heirs of Defendant No. 3 on the notion that though the surety's death operates revocation for the future transactions, but under Clause 17 the surety himself admitted that his guarantee would be binding upon the legal heirs. Whether it is binding or not, this cannot be answered without thrashing out the indenture of guarantee. According to plaintiff own assertion, the plaintiff entered into a Master Istisna Agreement with the Defendant No. 1 on 5.8.2010 and in the sanction letter the tenure of facility was to be valid and disbursed up to 31.3.2011, even in the plaint nothing has been shown against which facility the deceased guarantor was liable for the guarantee which he executed in the year 2006. In Paragraph No. 6 of the plaint, the details of documents executed for hypothecation of moveable and immovable properties are mentioned which were executed by the Defendant No. 1 in favour of the plaintiff. Though the guarantee stated to be continued in effect unless the amount payable by the customer under the facilities have been finally paid in full to the entire satisfaction of the bank, but again nothing is mentioned in the plaint as to what financial facility was availed by the Defendant No. 1 against the guarantee executed by the Defendant No. 3 in his lifetime. It is also not mentioned whether any demand was raised against the deceased guarantor in his lifetime though in the guarantee the bank in its discretion could have enforced the guarantee by making a demand for payment of the defaulted amount upon the deceased guarantor. Though the deceased guarantor under Clause 5 of the guarantee agreed that the bank in case of death shall have a right to dispose of the moveable and immovable assets of the guarantor which are given in the schedule attached, but no schedule is attached with the guarantee to show that whether the guarantor provided any details of his moveable and immovable assets for the disposal and recovery of amount availed by the Defendant No. 1.
8. There is a vast difference between a guarantor and a mortgagor. Had the Defendant No. 3 in his lifetime mortgaged the property against some finance facility availed by him, position could have been different and recovery could have been made through the disposal of his assets by impleading his legal heirs in the suit and the liability of deceased defendant could have been discharged from selling his estate which is not the case in hand. Mere mentioning a word in the guarantee that this would be binding on the successor-in-interest will have no significance and the legal heirs could not be held responsible unless they agreed to the covenant made in the guarantee by their predecessor-in-interest in their absence. The condition mentioned under Section 131 that "in the absence of any contract to the contrary" does not mean to hold responsible the legal heirs of the deceased guarantor as there is no contract with the legal heirs. So the condition mentioned under Section 131 of the Contract Act is not applicable. It is not the case of the plaintiff that if legal heirs of the Defendant No. 3 are not impleaded the bank shall suffer irreparable loss or injury as besides one personal guarantee of Defendant No. 3 there are many other guarantors available. The plaintiff has itself shown that the charge has been created on all the moveable and immovable assets of the Defendant No. 1 and various letters of hypothecation have been signed on behalf of Defendant No. 1 and in favour of plaintiff including the personal guarantees of directors.
9. At this juncture, I would like to observe only for the purpose of a reference that nevertheless, the civil and criminal law both are two different genera or species of law but the concept of surety and its liability/obligation and or responsibility is more or less alike and one and the same in both the laws. If a comparison is drawn between guarantor and surety, they have common role and obligation and both are bound for another person. Section 514, Cr.P.C. pertains to procedure on forfeiture of bond. Sub-section (6) makes it amply discernable that where surety to a bond dies before the bond is forfeited, his estate shall be discharged from all liability in respect of bond. Further mechanism to cope with or deal such a situation, Section 514-A, Cr.P.C. makes it more visible that when any surety to a bond dies, the Court by whose order such bond was taken may order the person from whom such security was demanded to furnish fresh security in accordance with the directions of the original order.
10. The counsel for the plaintiff referred to the case of First Woman Bank Ltd. (supra) in which well settled principle has been discussed that where the contract which become unenforceable against the principal borrower even then the guarantor is liable. There is no cavil to this proposition which is not applicable in the present case. Similarly, the case of Rafique Hazquel Masih the hon'ble Supreme Court has expounded that the liability of surety is co-extensive with that of the principal debtor, which again has no germane to the facts of the present case. He next referred to the case of Malik Bashir Ahmed Khan in which the learned Lahore High Court has held that if the suit had been filed against the only defendant who was dead at the time of institution of suit shall be nullity in the eyes of law but such rule shall not be applicable in the case where the suit has been instituted against more than one defendants and the defect if any shall be curable by the plaintiff after brining on record the legal heirs of the deceased defendant. This judgment is also distinguishable as it pertains to the challenge to the sale of property which was mutated in the name of deceased defendant and since the right of property was devolved upon legal heirs hence in order to safeguard their rights and interest, they were allowed to be impleaded but in the case in hand in my view no liability has been devolved upon the legal heirs of the Defendant No. 3. He further referred to the case of Habib Bank Ltd. (supra), another case of recovery of loan amount which is also distinguishable. In this case, after the demise of mortgagor-defendant, the learned Court held that whatever right the mortgagor had in the mortgaged property devolved upon her legal heirs hence, the request of bank for joining legal heirs in the suit as necessary and proper party was found to be tenable with the direction to make corresponding amendment. The case in hand is not the case of any mortgaged property by the deceased defendant but it is the case of guarantee which was automatically revoked upon the death of guarantor by fiction of law.
11. The learned counsel for the proposed legal heirs referred to the case of Muslim Commercial Bank Ltd. in which the Court held that the contract of guarantee is required to be specific and be void for any uncertainty, and must referred to a particular transaction or transactions. In my view, the ratio of this precedent reflects true legal position. He further referred to the case of Mst.Fayyazi Begum in which the learned Judge held that no amount was determined against the defendant during the lifetime of the surety. Surety died before any direction or decree was passed for the recovery of the amount. Liability of the surety to pay on behalf of the principal debtor as per the surety bond arose only where the decree was passed or the defendant was directed to make payment of the amount. In this case also as I discussed earlier neither any demand was made to the Defendant No. 3 in his lifetime for payment nor any suit was instituted in his lifetime against the Defendant No. 1 for the recovery of any demand or liability arising from the documents of guarantee nor any judgment and or decree was passed against Defendant No. 1 in the lifetime of deceased Defendant No. 3.
12. As a result of above discussion, I am of the firm standpoint that neither the legal heirs of the deceased Defendant No. 3 are proper party nor necessary party in the suit. The plaintiff has failed to figure out any cause of action against the legal heirs of the Defendant No. 3. Consequently the application is dismissed.
(R.A.) Application dismissed
nice share .. thanks
ReplyDeleteIf you are interested about directors personal guarantee related more information contact me.
ReplyDelete