Delhi High Court
Late J.P. Gupta (Through His Lr. ) Sunil … vs Bosch Limited & Ors on 28 July, 2025
Author: Navin Chawla
Bench: Navin Chawla
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 13.05.2025
Pronounced on: 28.07.2025
+ FAO(OS) 58/2025 & CM APPLs. 28909-11/2025
LATE J.P. GUPTA
(THROUGH HIS LR.) SUNIL GUPTA ....Appellant
Through: Mr. Shikhar Mittal & Mr.
Jatin Kapur, Advs.
versus
BOSCH LIMITED & ORS. .....Respondents
Through: Nemo.
CORAM:
HON'BLE MR. JUSTICE NAVIN CHAWLA
HON'BLE MS. JUSTICE RENU BHATNAGAR
JUDGMENT
RENU BHATNAGAR, J.
1. This appeal has been filed by the appellant, challenging the
Order dated 08.05.2024 passed by the learned Single Judge of this
Court in I.A. 10423/2023 in CS(OS) 135/2006, titled ‘Bosch limited v.
M/S Guptajee Engineers & Ors.’ (hereinafter referred to as the
‘Impugned Order’), whereby the learned Single Judge has been
pleased to set aside the abatement of Suit qua the appellant herein in
terms of Order XXII Rule 9 (2) of the Code of Civil Procedure, 1908
(hereinafter referred to as, ‘CPC‘).
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Brief Facts
2. The respondent company had filed the abovesaid Suit for
recovery against the Late Shri J.P. Gupta/defendant no. 2 as a
proprietor of M/s Guptajee Engineers (defendant no. 1), praying for
the following reliefs:
“(a) Pass a decree in favour of the Plaintiff
Company and against the Defendants for a
sum of Rs. 1,03,78,709.76 (Rupees One Crore
Three Lacs Seventy Eight Thousand Seven
Hundred and Nine and Paise Seventy Six
Only) along with interest @ 19% from,
December 1, 2005, till realisation;
(b) Award costs of the present suit to the
Plaintiff Company.”
3. In the plaint, the respondent no. 1- company has asserted that it
is engaged in the business of manufacturing, marketing and sale of
spark plugs, fuel injection equipment and other auto parts/ accessories.
The respondent no. 1 claims that the respondent company supplied
several consignments of equipment to the defendant no.1/partnership
firm in the original Suit, and after dispatch, raised invoices for the
same.
4. It is the case of the respondent no. 1 that since the defendants
failed to make payments against the invoices raised by the respondent
company, on respective due dates, the respondent company issued a
notice dated 04.04.2005 calling upon the defendants therein to pay the
said amount within 15 days from the date of receipt of the said notice.
5. Thereafter, since the defendants therein failed to make the said
payments, the plaintiff/ respondent no. 1 herein filed the above Suit
for recovery of Rs. One Crore Three Lacs Seventy-Eight Thousand
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Seven Hundred and Nine Rupees and Seventy-Six Paisa only.
6. The Late Shri J.P. Gupta filed his Written Statement in the Suit,
on or around 30.07.2012 inter alia stating that the Partnership Firm,
which was impleaded as defendant no.1, had been dissolved on
31.03.2006, that is, before the institution of the Suit and the business
of the Partnership Firm was taken over by the him as the sole
proprietor. Consequently, the name of defendant no. 3/Shri M.K.
Gupta, erstwhile partner of the Partnership Firm was deleted. Late
Shri J.P. Gupta also set up a claim for set-off against the
plaintiff/respondent no.1.
7. The issues were framed in the above-mentioned Suit on
17.03.2016, however, during the course of the proceedings of the Suit,
Late Shri J.P. Gupta unfortunately passed away on 16.02.2021.
8. It is asserted by the appellant that the said Suit abated qua the
Late Shri J.P. Gupta/defendant no. 2.
9. It is the case of the appellant that the plaintiff/respondent no.1,
on 27.09.2022 filed an application under Order XXII Rule 4 CPC
seeking substitution/impleadment of LR’s of Late Shri J.P. Gupta,
albeit, without an application under Order XXII Rule 9(2) seeking
setting aside of the abatement of the Suit qua Late Shri J.P. Gupta. It
was only on 20.05.2023, that the plaintiff/respondent no.1 filed the
application seeking setting aside of abatement of Suit qua Late Shri
J.P. Gupta, along with an application seeking condonation of delay in
filing the abovesaid application.
10. The plaintiff/respondent no.1 contended that the exact date of
death of Late Shri J.P. Gupta was not known to the respondent till
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02.05.2023. Thereafter, the respondent made every endeavour to
secure the details of the LRs of the deceased defendant no. 2 therein,
and filed the above application.
11. The learned Single Judge, vide the Impugned Order, allowed
the said applications filed by the respondent/plaintiff by holding as
under:
“12. From the averments made in the present
application, it is evident that the delay initially
occurred due to the COVID-19 Pandemic.
Thereafter, the plaintiff has filed I.A.
16250/2022 under Order XXII Rule 4 CPC on
27.09.2022 for bringing the legal heirs of the
deceased defendant No. 2 on record. Due to
inadvertence, the Application No. I.A.
10423/2023 under Order XXII Rule 9(2) of
CPC, 1908 for setting aside the abatement of
suit qua defendant No. 2, has been delayed.
13. It is evident that the application for
substitution of legal heirs had been filed
diligently and there is pure inadvertence in not
filing the appropriate Application No. I.A.
10423/2023 under Order XXII Rule 9(2) of
CPC, 1908 for setting aside the abatement of
suit qua defendant No. 2. Since the substitution
of the legal heir defendant No. 2 can be
allowed only after the abatement is set aside.
14. It is also pertinent to observe that the
procedural laws cannot be applied against the
litigant to deny him the substantive rights. In
the interest of justice and for the reasons
stated above, the application is allowed and
the delay in filing the Application No. I.A.
10423/2023 under Order XXII Rule 9(2) of
CPC, 1908 is hereby allowed
xxxx
24. The plea on behalf of the legal heir of
defendant No. 2/J.P. Gupta that he cannot be
impleaded as there is no right to sue against
him, is absolutely fallacious. A proprietorship
is only a business name which is run by a
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proprietor. In case of the death of the
proprietor, the right to sue continues against
the legal representatives of the proprietor as
the real party that is being sued, is the
proprietor and not the business as held by the
Apex Court in Raghu Lakshminarayanan vs
Fine Tubes, (2007) 5 SCC 103.
25. Therefore, it cannot be said that there is no
cause of action survives in the present Suit.
xxxx
27. In view of the circumstances as discussed
above, the application is allowed and the
abatement is hereby set aside.”
12. Aggrieved of the impugned order, the appellant has preferred
the present appeal.
Submissions of the learned counsel for the appellant
13. The learned counsel for the appellant submits that the
application seeking setting aside of the abatement of the Suit qua Late
Shri J.P. Gupta is grossly time barred, being filed beyond the
prescribed sixty days period from the date of deemed abatement of the
Suit, that is, 29.05.2022. He further submits that the respondent no.1
did not provide any sufficient cause for seeking condonation of delay
of 120 days in filing the application seeking setting aside of abatement
of the Suit qua Late Shri J.P. Gupta, and hence, an important right had
already crystallized and matured in favour of the appellant.
14. He further submits that no right to sue exists in favour of the
respondent as against the appellant herein/ LRs of Late Shri J.P.
Gupta, as the defendant no. 1 therein, being a partnership firm, ceased
to exist on the death of the partner, as prescribed by the Section 42(c)
of the Indian partnership Act, 1932 (in short, ‘Partnership Act‘).
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15. He submits that the appellant/LR of Late Shri J.P. Gupta did not
inherit any estate/property from the deceased Late Shri J.P. Gupta and
as such no right to sue survives qua the appellant.
16. He submits that the knowledge of death of Late Shri J.P. Gupta
was even recorded in /the Order dated 28.09.2021, passed in the Suit.
He further submits that the lackadaisical approach of the respondents
no. 1 further precludes them from any leniency from this Court
17. The learned counsel for the appellant submits that the Judgment
of the Apex Court in Raghu Laskshminarayan v. Fine Tubes, (2007)
5 SCC 103 , relied upon by the learned Single Judge, is not applicable
to the facts of the present case as in the present case, even if it is
believed that the nature of M/s Guptajee Engineers changed from
being a partnership firm to a sole proprietorship of Late Sh. J.P.
Gupta, the alleged dues incurred, if any, were at the time of existence
of the partnership firm and in the course of its business dealings of the
Respondent No. 1 Company with said partnership firm only, and not
subsequently.
18. The learned counsel for the appellant further places reliance on
Judgements of the Apex Court in S.P. Misra & Ors. v. Mohd.
Laiquddin Khan & Anr., (2019) 10 SCC 329, and Annapurna B.
Uppin & Ors. v. Malsiddappa & Anr., (2024) 8 SCC 700, submitting
that the liability which arose on account of alleged non-payment of
invoices raised upon the partnership firm, could in no manner become
the liability of a legal heir of one of the partners of the firm, even after
the dissolution of the partnership firm
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By:PRIYADARSHANI JAIN
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Analysis and findings
19. We have considered the submissions made by the learned
counsel for the appellant.
20. The principles to guide courts while considering applications
for setting aside of abatement and application for condonation of delay
in filing the said applications are laid down by the Apex Court in
Perumon Bhagvathy Devaswom v. Bhargavi Amma & Ors., (2008) 8
SCC 321, and the same is reproduced as under:
“13. The principles applicable in considering
applications for setting aside abatement may
thus be summarised as follows:
(i) The words „sufficient cause for not
making the application within the period of
limitation‟ should be understood and
applied in a reasonable, pragmatic,
practical and liberal manner, depending
upon the facts and circumstances of the
case, and the type of case. The words
„sufficient cause‟ in Section 5 of the
Limitation Act should receive a liberal
construction so as to advance substantial
justice, when the delay is not on account of
any dilatory tactics, want of bona fides,
deliberate inaction or negligence on the
part of the appellant.
(ii) In considering the reasons for
condonation of delay, the courts are more
liberal with reference to applications for
setting aside abatement, than other cases.
While the court will have to keep in view
that a valuable right accrues to the legal
representatives of the deceased respondent
when the appeal abates, it will not punish
an appellant with foreclosure of the appeal,
for unintended lapses. The courts tend to set
aside abatement and decide the matter on
merits, rather than terminate the appeal on
the ground of abatement.
(iii) The decisive factor in condonation of
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delay, is not the length of delay, but
sufficiency of a satisfactory explanation.
(iv) The extent or degree of leniency to be
shown by a court depends on the nature of
application and facts and circumstances of
the case. For example, courts view delays
in making applications in a pending appeal
more leniently than delays in the institution
of an appeal. The courts view applications
relating to lawyer‟s lapses more leniently
than applications relating to litigant‟s
lapses. The classic example is the difference
in approach of courts to applications for
condonation of delay in filing an appeal
and applications for condonation of delay
in refiling the appeal after rectification of
defects.
(v) Want of „diligence‟ or „inaction‟ can be
attributed to an appellant only when
something required to be done by him, is
not done. When nothing is required to be
done, courts do not expect the appellant to
be diligent. Where an appeal is admitted by
the High Court and is not expected to be
listed for final hearing for a few years, an
appellant is not expected to visit the court
or his lawyer every few weeks to ascertain
the position nor keep checking whether the
contesting respondent is alive. He merely
awaits the call or information from his
counsel about the listing of the appeal.”
21. Recently, the Supreme Court in Binod Pathak & Ors. v.
Shankar Choudhary & Ors., 2025 SCC OnLine SC 1411, while
reiterating the principles laid down in the Judgment in Perumon
Bhagvathy Devaswom (supra), has held as under:
“60. Rule 10A of Order XXII, as inserted by
the Amendment Act, 1976 imposes an
obligation on the pleader appearing for the
party to intimate death of his client to the
court. But there is difference of opinion as to
whether the duty imposed on the pleader isSignature Not Verified
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confined to factum of death of a party or also
to furnish names and particulars of legal
representatives.
61. According to one view, there is no
obligation on the pleader appearing on behalf
of the deceased party to furnish or supply list
of legal representatives of the deceased.
62. According to the other view, however, the
pleader has not only to inform the court as to
death of the party but he must also furnish
particulars of legal representatives.
63. However, we are of the view that providing
merely an information with regard to the fact
of death is not sufficient compliance of the
Rule 10A of the CPC. unless and until the
counsel furnishes the information with regard
to the details of the persons on whom and
against whom the right to sue survives and the
information under Rule 10A of the CPC. and
the object behind it would remain incomplete
as the parties would still be labouring to
inquire who are the legal representatives and
find out as to upon whom and against whom
the right to sue survives.
*****
66. The legislative intention of casting a
burden on the advocate of a party to give
intimation of the death of the party
represented by him and for this limited
purpose to introduce a deeming fiction of the
contract being kept subsisting between the
advocate and the deceased party was that the
other party may not be taken unaware at the
time of hearing of the appeal by springing
surprise on it that the respondent is dead and
appeal has abated. In order to avoid
procedural justice scoring a march over
substantial justice the Rule 10A was
introduced by the Code of Civil Procedure
(Amendment) Act of 1976 which came into
force on February 1st, 1977. Unfortunately,
the High Court took no notice of the
wholesome provision and fell back on the
earlier legal position which automatically
stands modified by the new provision andSignature Not Verified
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reached an unsustainable conclusion.”
22. Rule 1 of Order XXII of the CPC lays down that a suit shall not
abate on the death of a party if the right to sue survives. Where such
right survives, the procedure for substitution of legal representatives is
prescribed in Rule 3 (in the case of the plaintiff/appellant) and Rule 4
(in the case of the defendant/respondent) of Order XXII.
23. When a party dies, an application for bringing the legal
representative(s) on record must be filed within 90 days from the date
of death, as stipulated under Article 120 of the Schedule to the
Limitation Act, 1963 (in short, ‘Limitation Act‘). Failure to do so
results in automatic abatement of the suit or appeal. However, it may
often happen that the plaintiff/appellant is not made aware of the death
of the defendant/respondent within the prescribed 90-day period. The
scheme of Order XXII of the CPC makes it clear that such lack of
knowledge does not prevent abatement. In such cases, upon acquiring
knowledge of the death, after the abatement has already occurred, the
remedy available to the plaintiff/appellant is to file an application for
setting aside the abatement. As per Article 121 of the Schedule to the
Limitation Act, such an application must be filed within 60 days from
the date of abatement.
24. If there is any delay in moving such application(s), an
application seeking condonation of delay shall be moved along with
such application(s). Once the Court is satisfied that sufficient cause
has been shown for the delay in filing the application to set aside the
abatement, and the delay is condoned, the abatement is set aside
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accordingly. Thereafter, upon substitution of the deceased party being
allowed, the suit or appeal stands revived and shall proceed to be
heard and decided on its merits.
25. In the present case, as noted hereinabove, the defendant no. 2,
namely Late Mr. J.P. Gupta unfortunately passed away on 16.02.2021,
however, keeping in view the extension of limitation by the Supreme
Court in re Cognizance for Extension of Limitation, (2022) 3 SCC
117, whereby, the Supreme Court had held that where the limitation
would have expired during the period between 15.03.2020 till
28.02.2022, like in the present case, the parties shall have a limitation
period of 90 days from 01.03.2022, the respondent no.1/plaintiff ought
to have moved an appropriate application seeking
substitution/impleadment of the legal representative(s) of the
defendant no. 2, on or before 29.05.2022.
26. Since the respondent no.1/plaintiff failed to move an
appropriate application seeking substitution/impleadment of the legal
representative(s) of the defendant no. 2, the said Suit, in terms of
Order XXII Rule 3 of the CPC, was deemed to be abated qua the
defendant no. 2 therein on 29.05.2022.
27. Thereafter, the appellant herein ought to have moved an
appropriate application under Order XXII Rule 9(2) of the CPC,
seeking setting aside of the abatement of the Suit qua the defendant
no. 2, within 60 days thereafter, however, the respondent no.1/plaintiff
failed to move the said application. It was only on 27.09.2022 that the
respondent no.1/plaintiff filed an application under Order XXII Rule 4
CPC seeking substitution/impleadment of LR’s of defendant no. 2,
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albeit, without an application under Order XXII Rule 9(2) seeking
setting aside of the abatement of the Suit qua the appellant/defendant
no. 2. After realising the said procedural lapse, the respondent
no.1/plaintiff moved an application, being I.A. 10423/2023, seeking
setting aside of the abatement of the Suit, alongwith an application
seeking condonation of delay in filing the said application being I.A.
10424/2023. The learned Single Judge, vide the Impugned Order,
allowed both these application, thereby, setting aside the the
abatement of the Suit qua the appellant/defendant no. 2.
28. In the present case, while allowing the IA 10424/2023 filed by
the respondent no.1/plaintiff seeking condonation of delay in filing the
application under Order XXII Rule 9(2) of the CPC seeking setting
aside of abatement qua deceased defendant no. 2/Late Shri J.P. Gupta,
learned Single Judge had taken note of the fact that delay initially
occurred due to Covid-19 pandemic and there is pure inadvertence of
the respondent no.1/plaintiff in not filing an application under Order
XXII Rule 9(2) of the CPC for setting aside the abatement of the
original Suit qua defendant no. 2. It was further observed by the
learned Single Judge in the Impugned Order that substitution of Legal
representatives of the defendant no. 2 /Late Mr. J.P. Gupta can be
allowed only after the abatement qua the defendant no. 2 is set aside,
and that the procedural laws cannot be applied against the litigant to
deny him the substantive rights.
29. We find no infirmity in the aforementioned observation passed
by the learned Single Judge in that regard. In Mithailal Dalsangar
Singh v. Annabai Devram Kini, (2003) 10 SCC 691, the Supreme
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Court, reiterated the need for a justice-oriented approach in such
matters. It was held that prayer to bring on record heir(s)/legal
representative(s) can also be construed as a prayer for setting aside the
abatement. The relevant passage reads as under:
“8. Inasmuch as the abatement results in
denial of hearing on the merits of the case, the
provision of abatement has to be construed
strictly. On the other hand, the prayer for
setting aside an abatement and the dismissal
consequent upon an abatement, have to be
considered liberally. A simple prayer for
bringing the legal representatives on record
without specifically praying for setting aside of
an abatement may in substance be construed
as a prayer for setting aside the abatement. So
also a prayer for setting aside abatement as
regards one of the plaintiffs can be construed
as a prayer for setting aside the abatement of
the suit in its entirety. Abatement of suit for
failure to move an application for bringing the
legal representatives on record within the
prescribed period of limitation is automatic
and a specific order dismissing the suit as
abated is not called for. Once the suit has
abated as a matter of law, though there may
not have been passed on record a specific
order dismissing the suit as abated, yet the
legal representatives proposing to be brought
on record or any other applicant proposing to
bring the legal representatives of the deceased
party on record would seek the setting aside of
an abatement. A prayer for bringing the legal
representatives on record, if allowed, would
have the effect of setting aside the abatement
as the relief of setting aside abatement though
not asked for in so many words is in effect
being actually asked for and is necessarily
implied. Too technical or pedantic an
approach in such cases is not called for.
9. The courts have to adopt a justice-oriented
approach dictated by the uppermost
consideration that ordinarily a litigant oughtSignature Not Verified
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not to be denied an opportunity of having a lis
determined on merits unless he has, by gross
negligence, deliberate inaction or something
akin to misconduct, disentitled himself from
seeking the indulgence of the court. The
opinion of the trial Judge allowing a prayer
for setting aside abatement and his finding on
the question of availability of „sufficient cause‟
within the meaning of sub-rule (2) of Rule 9 of
Order 22 and of Section 5 of the Limitation
Act, 1963 deserves to be given weight, and
once arrived at would not normally be
interfered with by superior jurisdiction.
10. In the present case, … such an approach
adopted by the Division Bench verges on too
fine a technicality and results in injustice
being done. There was no order in writing
passed by the court dismissing the entire suit
as having abated. The suit has been treated by
the Division Bench to have abated in its
entirety by operation of law. For a period of
ninety days from the date of death of any party
the suit remains in a state of suspended
animation. And then it abates. The converse
would also logically follow. Once the prayer
made by the legal representatives of the
deceased plaintiff for setting aside the
abatement as regards the deceased plaintiff
was allowed, and the legal representatives of
the deceased plaintiff came on record, the
constitution of the suit was rendered good; it
revived and the abatement of the suit would be
deemed to have been set aside in its entirety
even though there was no specific prayer made
and no specific order of the court passed in
that behalf.”
30. From a reading of the above, it can be established that the Court
in an application under Order XXII Rule 9(2) of the CPC has to
follow justice oriented approach while adjudicating upon such matters.
31. In Chinnammal v. P. Arumugham, (1990) 1 SCC 513, the
Supreme Court has expressed the need to follow justice-oriented
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Approach while interpreting provision of the CPC. The relevant
paragraph from the judgment is reproduced as under-
“17. It is well to remember that the Code of
Civil Procedure is a body of procedural law
designed to facilitate justice and it should not
be treated as an enactment providing for
punishments and penalties. The laws of
procedure should be so construed as to render
justice wherever reasonably possible. It is in
our opinion, not unreasonable to demand
restitution from a person who has purchased
the property in court auction being aware of
pending appeal against the decree.”
32. As regards the submission of the learned counsel for the
appellant that the liability which arose on account of alleged non-
payment of invoices raised upon the partnership firm could, in no
manner, become the liability of a legal heir of one of the partners of
the firm after dissolution of the partnership firm, is concerned, it is
rightly held by the learned Single Judge that it is a matter on merits
which shall be considered at the appropriate stage, when the Suit filed
by the respondent no.1 as well as the claim of set off raised by the
deceased Late Mr. J.P. Gupta will be decided.
33. Further, the reliance by the learned counsel for the appellant on
the Judgements of Supreme Court in S.P. Misra (supra), and
Annapurna B. Uppin (supra), is wholly misplaced and untenable in
the present context. The aforesaid judgements are distinguishable from
the facts of the present case, in as much as, in the said cases, the
respondents therein were neither the partner in the partnership firm
nor they have derived any assets and liabilities arising out of the
partnership firm, and therefore, it was held that decree was not
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executable against the respondent therein. The same is not the case
here because of admissions of the Late ShriJ.P. Gupta who has taken
over the firm as a sole proprietor and thereafter by the appellant the
death of his father/defendant no. 2.
34. In addition to the above, there is a delay of 343 days in filing of
the appeal. The only ground urged to seek condonation of this delay
by the appellant is that the parties were trying to explore the
possibility of amicable settlement and further the appellant was unable
to consult with his counsel despite diligent efforts, which hindered the
timely filing/preparation of the necessary legal proceedings. It was
also stated that a review of the Impugned Order was also filed by the
appellant. However, the same was dismissed as withdrawn. The
Application for condonation is devoid of merit and does not reason
why the appellant could not file the present appeal within time.
35. In view of the aforesaid, we find no merit in the present appeal.
The same, along with pending applications, is dismissed, both on
ground of delay and on merit.
36. However, we make it clear that no observation made herein
above shall affect the merits of the Suit before the learned Single
Judge.
RENU BHATNAGAR, J.
NAVIN CHAWLA, J.
JULY 28, 2025/KZ/VS
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