Bombay High Court
Bombay High Court
Litigation News

Legal vacuum does not mean Courts are helpless: Bombay HC appoints guardian for octogenarian lawyer’s assets to tend to his medical bills

The absence of living family and any prior-appointed guardian had hindered access to the senior lawyer's assets for the payment of his medical treatment at a hospital where he was stated to be bed-ridden.

Meera Emmanuel

The inherent powers of a civil court enshrined in Section 151 of the Code of Civil Procedure (CPC) was recently invoked by the Bombay High Court to come to the aid of an octogenarian lawyer whose absence of heirs hindered access to funds for the payment of his medical bills.

87-year old Kirit Nanvitlal Damania, also the sole proprietor of his firm M/s Kirit N Damania and company, was hospitalised on July 25. The High Court was informed that he has several health problems including heart and kidney problems, as well as diabetes.

At the hospital, he was bid ridden. Though conscious, the Court was told that the senior lawyer’s cognitive abilities appeared to be totally impaired and he was unable to recognise anyone as a result. He was unmarried, had no living siblings and no lineal descendants.

The Court was further informed that he never issued any power of attorney or appointed any constituted attorney to represent him or to attend to his affairs.

Damania has also had an attack of meningitis, and his condition was critical by the time two lawyers approached the High Court as plaintiffs seeking the Court’s intervention so that Damania’s assets could be accessed to pay up his medical bills.

This is an unusual suit”, Justice GS Patel remarked at the start of his order passed on Thursday.

Senior Advocate Nitin G Thakker was the first plaintiff in the matter, whereas the second plaintiff was a solicitor and Advocate who used to work for Kirit Navnitlal Damania for several years.

Apart from the question of access to his personal assets, the Court was told that he was the executor of a will, where some amounts were payable to one, Amit Vohra, the son of the deceased testator.

Some of the amount payable to Vora was kept in a fixed deposit account in the name of Damania jointly with the second plaintiff.

However, when Vora and the second plaintiff went to the bank to withdraw these funds, the Bank insisted on obtaining the signature of both holders, i.e. Damania’s signature as well, since the transaction involved a premature encashment.

This apart, there was also some money in the client account of Damania’s company. These were required to be accessed to pay up the extensive hospital bills for Damania’s treatment and to take care of his obligations.

In this backdrop, the plaintiffs had approached the Court for access to Damania’s assets as his guardians so that his medical bills can be footed and his legal obligations catered to. In their affidavits, the plaintiffs set out that they had no monetary interest in Damania’s properties, including his residential flat.

They only submit that Mr Damania is insurgent need of a legal guardian to look after his obligation including claim for his medical treatment and managing affairs.”

While commenting on the unique nature of the case at hand, the High Court also took note of the plaintiff’s submission that the only reason it was dubbed a “suit” was because it is the most basic form of bringing a matter to Court Indian jurisprudence.

Strictly speaking, the peculiar case-situation did not fall under any of the classes of cases to which civil orders could by applied under the CPC, the order notes.

“The present case falls only partly within the provisions of Order 32 (A) (2) (c) But as this Plaint points out, the State of the law in India simply does not make any sort of provision for a situation such as the present one. Mr Damania is neither mentally challenged nor of unsound mind nor a minor. He has no family. He is incapacitate by an illness and the current laws of guardianship do not provide any recourse in a situation like this. This is, therefore, something of a vacuum in law. That, however, does not mean that Courts are helpless or that situations such as these go unattended and unaddressed.”

There is, strictly, no dispute between the plaintiffs and defendants, the Court observed. Justice Patel went on to remark,

It, therefore, seems to me at once apparent that this is a kind of suit that will lie entirely outside the usual from of a regular suit, i.e. of the kind that demands the issue of service of a writ of summons, a written statement and so one. For the reason that there is no ‘lis’ too, the suit is one that admits of an order of court simply on the court being satisfied as to (1) the cause of action presented and (2) the credentials of the plaintiffs. On neither count is there any case or room for hesitation.”

Adding that there can be no opposition to the reliefs sought, the Court invoked Section 151, CPC to pass an order to appoint Senior Advocate Thakker as the lawful guardian of Damania’s assets and affairs and further ordered the banks involved to recognise him as such.

Senior Advocate Sharan Jatiani appearing for the plaintiffs along with Gaurav Mehta, Chaitanya Mehta, Lalan Gupta, Shivangi Agarwal and Sarah Thanwala briefed by Dhruv Liladhar & Co. AGP Jyoti Chavan appeared for the State of Maharashtra. Senior counsel NG Thakker was present in person.

Read the Order:

Nitin G Thakker and anr v. State of Maharashtra and ors.pdf
Preview
Bar and Bench - Indian Legal news
www.barandbench.com