Gujarat HC Rejects Son’s Plea Denying Liability for Father’s Bank Loan; Says ‘Debt Not Heritable Under Muslim Law’ Argument Needs Trial, No Grounds Under Order VII Rule 1
Kiran Raj
The Gujarat High Court has declined to entertain a petition filed under Article 227 of the Constitution of India seeking interference with the order passed by the 4th Additional Senior Civil Judge, Surat. The Division Bench comprising Chief Justice Sunita Agarwal and Justice Pranav Trivedi dismissed the petition, finding no grounds to interfere with the trial court's rejection of an application under Order VII Rule 11 CPC.
The Court noted that “none of the grounds of Rule 11 are attracted in the facts and circumstances of the case” and held that the issues raised by the petitioner “require framing of issues and adjudication by leading evidence.” The petitioner was granted the liberty to raise available defenses during the course of the trial.
The petition before the Gujarat High Court challenged the order dated 27.11.2024, passed by the 4th Additional Senior Civil Judge, Surat, in a civil suit instituted for the recovery of debt. The petitioner, impleaded as defendant no.2 in the suit, filed an application under Order VII Rule 11 CPC seeking rejection of the plaint.
The petitioner was joined to the suit in two capacities: as the legal heir of the original borrower (being his son) and as the proprietor of M/s. S.K. Textiles. The petitioner filed his written statement at exhibit 9. The trial court, in its consideration of the application under Order VII Rule 11 at exhibit 12, noted that the petitioner had not contended therein that he had no connection with the proprietorship firm.
The trial court further recorded that documents submitted with the plaint at exhibit 3 “apparently prove that the original borrower had obtained hypothecation in the capacity of proprietor of M/s. S.K. Textiles.” On this basis, the court examined the submissions advanced by the petitioner regarding his liability.
The petitioner’s counsel argued that, under Chapter XIV Synopsis 19 of Muslim law, “any debt left by a Muslim is not a heritable property.” It was also submitted that there was no privity of contract between the petitioner and the plaintiff Bank and that the suit should be dismissed on this basis. The counsel for the petitioner further contended that the petitioner had been living separately and independently from his father for a considerable period and should not be held liable for his father’s debt.
The trial court rejected these contentions, holding that the grounds raised in the application did not satisfy the parameters under Order VII Rule 11 CPC for rejection of the plaint. The trial court also recorded that the question of whether the petitioner could be made liable in the capacity of proprietor of M/s. S.K. Textiles was a matter that required detailed examination during the trial.
In the present petition filed under Article 227 of the Constitution of India, the petitioner sought to challenge the trial court's rejection of the application.
The Gujarat High Court considered the record and the arguments presented. The Court recorded that “the petitioner has been impleaded as defendant no.2, both in the capacity of the legal heir of the borrower and being the proprietor of M/s. S.K. Textiles.”
It was further noted that the trial court had found that the original borrower had obtained hypothecation in the capacity of M/s. S.K. Textiles, which warranted further examination. The Court recorded, “both the questions pertaining to the contention made by the learned counsel for the petitioner/defendant no.2 would require a detailed inquiry during the course of trial.”
In addressing the scope of Order VII Rule 11 CPC in the present matter, the Bench stated, “in any case, the suit cannot be dismissed by invoking the provisions of Order VII Rule 11 CPC as none of the grounds of Rule 11 are attracted in the facts and circumstances of the case.”
The Court further observed that the trial court had already provided the petitioner with liberty to raise all available defenses during the trial. The Court recorded, “this aspect of the matter is also taken care of by the trial court while observing that the defendant no.2, viz. the petitioner herein has liberty to take all defence available to him during trial.”
Accordingly, the High Court determined that the petitioner’s contentions regarding the application of Muslim law and the absence of privity of contract between the petitioner and the plaintiff Bank required evidence to be led and adjudication in the trial court. The Court found no merit in interfering with the trial court’s decision under Article 227 of the Constitution.
The Gujarat High Court concluded the matter by stating, “in view of the above, no infirmity can be found in the order passed by the trial court. The present petition is dismissed accordingly.”
Advocates Representing the Parties
For the Petitioner : Mr. Nayan D Parekh
For the Respondent : Paritosh R Gupta with Nancy Soni
Case Title: Imran Kumelahmed Khan Legal Heir of Late Kumelahmed Abdulhamid Khan versus State Bank of India & Anr.
Neutral Citation: 2025:GUJHC:15203-DB
Case Number: R/Special Civil Application No. 2133 of 2025
Bench: Chief Justice Sunita Agarwal and Justice Pranav Trivedi
[Read/Download order]
