Industrial Rubber And Latex Manufacturers, Dehradun v. Bank Of Baroda
1989-03-07
M.P.SINGH
body1989
DigiLaw.ai
JUDGMENT M.P. Singh, J. 1. This is defendant's revision arising out of an order dated 8th July 1988 passed by VI Additional Civil Judge, Dehradun rejecting the application for amendment of the written statement. 2. The plaintiff respondent filed suit no. 102 of 1985 Bark of Baroda v. M/s Industrial Rubber and Latex Manufacturers and another for recovery of Rs.57908.00 with costs and pendentelite interest at 15% per annum and also for the appointment of receiver with all the power conferable uncer Order 41 Rule 1 CPC. The suit was filed inter alia on the ground that the plaintiff is a corresponding New Bank and is entered as such in the First Schedule of the Banking Companies (Acquisition and Transfer of Undertakings) Act no. 5 of 1970 and is a body corporate entitled to sue under section 3 sub-section (4) of the said Act. 3. On 25-2-82, at the request of defendant no. 2 the plaintiff opened a mutual Current and open Cash Credit Account in the name of defendant no. 1 in their books in Dehradun Branch. The cash credit limit was Rs. 35,000/-. It was agreed that the interest at 5% over Reserve Bank of India rate with quarterly rests would be paid by the defendants on the over drawn amounts. A security for the above cash credit account was also furnished by the defendants. The transaction between the parties on the aforesaid cash credit account commenced form 27-2-82 and continued upto 28-1-1983 on which date a sum of Rs. 57,908.00 as balance remained due from, and payable by the defendants. Inspite of repeated demands and the registered notice dated 21-4-1984 through counsel, the money has not been paid, thus the suit was filed. 4. The suit was contested by the defendants, but in para 17 of the written statement, the defendants have said that they had always been willing and are still willing to repay the loan accepted, provided the Bank accepts the repayment in easy instalments. Only the rate of interest has been disputed in para 18. Thereafter, an application for amendment of the written statement has been filed on behalf of the defendant no. 2 adding about 20 paragraphs. Apart from other points, the defendants have also resiled from the admission made in the written statement.
Only the rate of interest has been disputed in para 18. Thereafter, an application for amendment of the written statement has been filed on behalf of the defendant no. 2 adding about 20 paragraphs. Apart from other points, the defendants have also resiled from the admission made in the written statement. The amendment application was filed seeking the following main amendments : (i) The plaintiff is not a corresponding New Bank and is not entitled to sue. Shri B. S. Saini is not entitled to sign and verify the plaint on behalf of the plaintiff as he is neither the Manager, nor recognised agent of the plaintiff. He is not even the attorney of the plaintiff. (ii) It is wrong to allege that cash credit limit was Rs. 35,000/-. (iii) It is wrong to allege that the defendants acknowledged the liability of Rs. 34,507.16 on 8-11-1982. It is also wrong to allege that the defendants executed a pronote, a letter of hypothecation on 8-11-1982 in favour of the plaintiff as continuing security. It is also wrong to allege that the defendants agreed to pay the interest at the rate of 5 per cent over the Reserve Bank of India rate subject to a minimum of 15 per cent per annum with quarterly rests. (iv) It is wrong to allege that a sum of Rs. 40,444.61 was due to the plaintiff form the defendants on 28-1-1983. (v) The accounts filed by the plaintiff are fictitious and wrong. They are inadmissible in evidence. (vi) The documents referred in the plaint are forged and fictitious. They are inadmissible in evidence. The plaintiff has misused the blank forms on which the signature of the defendant no. 2 were obtained. Apart from the above mentioned main points, sought to be amended, the defendants has taken large number of other points to be added. 5. After hearing both the parties, the Trial Court has rejected the amendment application. 6. Heard Sri S. P. Kapoor, learned Standing Counsel and Sri V. B. Singh counsel for the respondents and perused the copy of plaint, written statement and amendment application which have been filed alongwith the stay application. The main contention of the learned counsel for the applicant is that the amendment sought did not change the nature of the case nor, in any way caused any prejudice to the plaintiff. In my opinion, this submission is misconceived.
The main contention of the learned counsel for the applicant is that the amendment sought did not change the nature of the case nor, in any way caused any prejudice to the plaintiff. In my opinion, this submission is misconceived. In a case reported in AIR 1978 SC page 798 Mohd. Ishaq v. Mohd. Iqbal, it was observed : "The amendment of written statement sought in appeal was on such facts which, if permitted to be introduced, would have completely changed the nature of the original defence. It would have brought about an entirely .new plea which was never taken up either at the time of original pleadings. The additional evidence sought to be adduced was in respect of the facts stated in the amendment petition. Held that the High court in appeal rightly rejected all the petition for amending the written statement and adducing additional evidaence." In the instant case, in para 17 of the written statement, the defendants have admitted the claim of the plaintiff, but have shown their inability to pay the entire amount in lump sum. By means of the amendment, the defendants have tried to resile from the admission thus made. On account of the said admission, a valuable right has accrued in favour of the plaintiff. If the defendants are permitted to amend the written statement, it would completely change the nature of their original defence. Now, the defendants want to bring an entirely new plea. This amendment would cause great prejudice to the plaintiff's case. 7. Looking into the original plea and the amendment sought, I am of the opinion that the Trial court has rightly rejected the application. 8. In another reported case in AIR 1977 SC 680 Modi Spinning Mills v. Ladha Ram and Co., it was observed as under : "The Trial Court rejected the application of the defendants for amendment. One of the reasons given by the Trial Court is that the defendants wanted to resile from the admission made in para 25 of the written statement. The Trial Court said that "repudiation of clear admission is motivated to deprive the plaintiff of the valuable right accrued to him and it is against the law. The Trial Court held the application for amendment to be not bonafide.
The Trial Court said that "repudiation of clear admission is motivated to deprive the plaintiff of the valuable right accrued to him and it is against the law. The Trial Court held the application for amendment to be not bonafide. "The High Court in revision confirmed the judgment of the Trial Court and said that by means of the amendment applications, the defendants wanted to introduce an entirely different case and if such amendments were permitted, it would prejudice the other side. The decision of the Trial Court is correct, the defendants cannot be allowed to change completely the case made in para 25 and 26 of the written statement and substitute an entirely different and new case." The facts of the present case are practically similar to -the case of Modi Spinning Mills (supra). The applicants have miserably failed to distinguish this case. 9. The Supreme Court while considering the scope of Section 115 of the Code of Civil Procedure, had laid down certain guidelines in the case of Pandurang Dhondi Chougule v. Maruit Hari, AIR 1966 SC 153 as under : "The High Court cannot while exercising its jurisdiction under section 115, correct errors of fact, however gross they may be, or even errors of law. It can only do so when the said errors have relation to the jurisdiction of court to try the dispute, itself. It is only in case, where the subordinate court has exercised a jurisdiction not vested in it by law, or has failed to exercise a jurisdiction so vested, or has acted in the exercise of its jurisdiction illegally or with material irregularity that the revisional jurisdiction of the High Court cannot be probably invoked. Points of law may arise which are related to questions of jurisdiction. A plea of limitation or a plea of res- judicata is a plea of law which concerns the jurisdiction of the court which tries the proceedings. A finding on these pleas in favour of the party which raises them would oust the jurisdiction of the Court. An erroneous decision on these pleas, therefore, can be said to be concerned with questions of jurisdiction falling within the purview of section 115 of the Code. But an erroneous decision on a question of jurisdiction will not be corrected by the High Court under section 115" 10.
An erroneous decision on these pleas, therefore, can be said to be concerned with questions of jurisdiction falling within the purview of section 115 of the Code. But an erroneous decision on a question of jurisdiction will not be corrected by the High Court under section 115" 10. Thus while exercising the revisional jurisdiction, this court is not inclined to interfere with the order of the Trial Court. There is no jurisdictional error or any material irregularity in the exercise of jurisdiction. The revision is dismissed with costs. Revision dismissed.