Tej Machinary & Mills stores v. Syndicate Bank — 1989 DIGILAW 824 (ALL)

JUDGMENT A.N. Dikshita, J. - The present revision under Section 115 of the Civil Procedure Code has been directed against the order dated 22-2-1989 passed by Vth Additional Civil :Judge, Moradabad, in Original Suit No. 99 of 1987, Syndicate Bark v. M/s Taj Machinary & Mill Stores , by which the application filed by the applicant under Order 6 Rule 17 Civil Procedure Code was rejected. 2. The facts in brei fare that the Syndicate Bank (O.I.P. No.1) filed a suit in the court of Civil Judge claiming the relief for a mortgage decree of Rs. 805653.25P. with pendentilite and future interest at the rate of Rs. 18.50P. per annum against the defendant jointly and severally and the amount of the decree be ordered to be realised from the sale of the mortgaged property along with pledged and hypothecated goods detailed in the plaint, which are annexures C, A and B respectively. It was further prayed that in case the proceeds of sale are found to be insufficient for the satisfaction of the decretal amount then the plaintiff may reserve the right to apply for an order for realisation of the balance amount from the farom assets and person of the defendants besides the costs of the suit. The plaint has been annexed as Annexure B to the supplementary affidavit. A detailed written statement has been filed on behalf of the defendants, on 24-2-1988. During the pendency of the suit after about a year on 13-2-1989 an application. Order 6 Rule 17 Civil Procedure Code was filed. By a very detailed order the trial Court rejected this application. The trial Court has found that the proposed amendment in para 19 that the defendants were not aware about the limits having been granted on 8-4-1980 is wholly untenable. It was found that in para 4 of the written statement facility of overdraft limit of Rs. 50,000/ - and Rs. 2,50,000/- has been admitted by the defendant. It was found by the Trial Court that the defendants have applied to grant such limit and at the time of grant of such limit promissory note was executed. It was thus held by the trial Court that the proposed amendment in para 19 is not permissible. 3. 50,000/ - and Rs. 2,50,000/- has been admitted by the defendant. It was found by the Trial Court that the defendants have applied to grant such limit and at the time of grant of such limit promissory note was executed. It was thus held by the trial Court that the proposed amendment in para 19 is not permissible. 3. The trial Court in regard to proposed amendment to para 15 has held that the defendants at the time of the filing of the written statement had now where stated that the Manager did not accord full facility and without informing the defendants R.R and G.R. were returned which cost him a loss of Rs. 2,00,000/- which is liable to be deducted from the amount claimed by the plaintiff. It was found that no counterclaim has been filed by the defendants nor any court fee had been paid around these grounds the proposed amendment in para 15 was rejected by the trial Court. The defendants had also proposed amendments to para 14 - A to 14 - E to be added in the written statement. In para 14 - A it was proposed that the suit is liable to be dismissed as the plaintiff had not complied with the necessary requirements but the trial Court found that the defendants No. 2 to 4 have admitted that they had pledged the property with the plaintiff as is clear from the recital in para 24. The defendants in the proposed amendment 14 - B of the written statement alleged that the suits bad for non-joinder of party as Smt. Jameela Khatoon widow of Haji Abdul Salam has not been impleaded as a necessary party. However, the trial Court while repelling the contention for adding 14 - C in the written statement held that in para 6 and 24 the defendants had admitted the execution of the deed in favour of the plaintiffs. While repelling the proposed amendment in para 14 - D of the written statement the trial Court found that the defendants had admitted the allegations as contained in para 8 of the plaint and as such any. such amendment is not liable to be permitted. As regards the amendment in the third line c f para 4 - B of the written statement the trial Court found them to be vague and not liable to,, dded. such amendment is not liable to be permitted. As regards the amendment in the third line c f para 4 - B of the written statement the trial Court found them to be vague and not liable to,, dded. As regards the amendment in para 19 of the written statement that no rate of interest was agreed upon between the parties, it has been found by the trial Court that in the written statement, the defendants had only pleaded that the rate of interest is excessive. However, the trial Court did not allow this amendment to be added and held that the parties can adduce evidence to that effect. As regards the 6th amendment after para 19 of the written statement that the details of the amount claimed have not been specified, the trial Court found that the parties can lead evidence to that effect. The defendants have claimed amendments in para 23 regarding the execution of the mortgage- deed. However, the trial Court did not allow this amendment to be added in view of an application 40 - C having been rejected on 17-2-1989. The defendants had further claimed amendment to para 11 of he written statement. But the trial Court again rejected it in view of the admission of the defendant on 6 4-1983 and 7-12-1985. The application 49 Ka was, thus rejected giving rise to the instant revision. 4. Learned counsel for the applicant Sri Rajesh Tandon has strenously submitted that the trial Court committed a material irregularity in refusing the amendments in the written statement. It has been submitted that the courts should be liberal in granting the amendments. It has been submitted that it is the settled view that a party should not be deprived of amending the written statement. It is difficult to agree to the submissions made on behalf of the applicant. The trial Court by a very detailed order has dealt with the proposed amendments to the written statement and while exercising its discretion has found that the proposed amendments are neither proper nor permissible to be added. Apparently the applicants are adopting dilatory tactics to stall the proceedings of the suit and the instant application for the amendment of the written statement is such a step in that direction. In the case of 'Union of lndia v. Lt. Col. Ajay. Apparently the applicants are adopting dilatory tactics to stall the proceedings of the suit and the instant application for the amendment of the written statement is such a step in that direction. In the case of 'Union of lndia v. Lt. Col. Ajay. Narain Sapru" (Civil Revision No.93 of 1985, decided on 22-12-1988), a catena of decisions were cited at the Bar and were considered in detail. In the case of "Haridas Aildas Thedani v. Godrej Rustom Kermani" ( 1984(1) SCC 668 ) their Lordships of the Supreme Court held that the court should be extremely liberal in granting prayer for the amendment unless serious injustice or irreparaable loss is caused to the other side. It was further observed that the test for allowing the amendment is to find whether the proposed amendment works any serious injury to the, other side. In the case of "Maitreyee Banerjee v. Prabir Kumar Mukherjee" (AIR 1982 Supreme Court 17) a similar view was taken that unless the amendment works serious injustice to the other side it should be allowed and more so when the amendment sought was not clearly barred by limitation or may cause an irreparable injury to the other side. In the case of "Vineet Kumar v. Mangal Sain Wadhara (AIR 1985 Supreme Court 817) it was held that normally amendment is not allowed if it changes the cause of action or raises a new case but amounts not more than adding to the facts already.on record., In the case of "Kama Regni and others v. Nepal Bank Ltd. and others " (1987 ALJ 349) a similar view was taken. Learned counsel for the Opp. party has submitted that the effort of the applicant is to delay the proceedings and the case and is taking contradictory pleas, thus, causing serious injury to the interest of the Opp. party. In the case of 'Jagan Nath (Deceased) through Lrs. v. Chander Bhan ( 1988(3) SCC 57 ) the Supreme Court held as under :- "During the pendency of the appeal the tenant preferred an application under "Order 6 Rule 17 of the Civil Procedure Code seeking permission to amend his written-statement. The appellant contended that the land lord filed eviction petition in respect of the said premises against the appellant and his two sons which was assigned to Sri. A.P. Chaudhary, Additional Rent Controller. The appellant contended that the land lord filed eviction petition in respect of the said premises against the appellant and his two sons which was assigned to Sri. A.P. Chaudhary, Additional Rent Controller. Another objection raised was that the property was taken on rent by M/s. Bindra Tent House and, therefore, the petition for eviction was not maintainable. The application had been contested in which it had been admitted that the earlier petition for eviction was filed but according to the respondent it was not properly instituted and the same was withdrawn. It was denied that the application was not maintainable. The Tribunal on an analysis of the matter came to the conclusion that belated amendment could not be permitted. It was emphasised that the tenant had admitted in the written statement that he was a tenant in the property in question. He could not subsequently be allowed to wriggle out of this situation and withdraw the admission. If the amendment was allowed, they would take valuable right of the other side and altogether a new plea would be taken, it was held. This cannot be permitted. In this connection, the Rent Tribunal relied upon "the observations of the Assam High Court in Subashini Majumdar v. Krishna Prasad Mahatoo The same view was reiterated by this Court in Modi Spinning and Weaving Mills Co. Ltd. v. Ladha Ram and Co. where the proposed amendment introduced an entirely new case seeking to displace the other side completely from the admission made then. It was held that such an amendment could not be allowed. We are of the opinion that the Rent Tribunal was, therefore, right in refusing the amendment on the basis of the aforesaid principle. The Tribunal on an analysis of evidence and facts came to the conclusion that there was no merit in the appeal and dismissed the appeal and affirmed the eviction order." In the case of M/s. Modi Spinning and Weaving Mills Co. Ltd. v. M/s Ladha Ram and Co. (AIR 1977 Supreme Court 680). it was held that by means of amendment the defendant wanted to introduce an entirely different case and if such amendments were permitted, it would prejudice the other side. The defendants applicants cannot be allowed to change completely the case and in any case the defendants- appellants want to resile from admissions made in the written statement. it was held that by means of amendment the defendant wanted to introduce an entirely different case and if such amendments were permitted, it would prejudice the other side. The defendants applicants cannot be allowed to change completely the case and in any case the defendants- appellants want to resile from admissions made in the written statement. It was found by the Supreme Court that the trial court which held that the repudiation of the clear admission is motivated to deprive the plaintiff of the valuable right according to him and it is against law. In the case of "Smt. Satya Sharma v. S.K. Sen " (1988 A.R.C. page 451). it was held that a tenant seeking certain amendments relating to denial of landlord's title were not bonafide and the amendment was not liable to be allowed. In the case of "Co. Zamir Ahmad (Reid.) v. Smt. Shah Jahan Begum" (1988 A.R.C. page 507). it was held by this Court that a new plea cannot be permitted to be raised in revision under Section 25 of the Provincial Small Cause Courts Act and more so when such plea needs investigation. In the case of ' Jamuna Ahir (Deceased by Lr s) v. Ram Bali Singh" (11986 A.L.J. 179). it was held that any amendment taking a contradictory plea by withdrawing the admissions made would not be permissible in law. 5. In the case of "Baluna Commercial College v. IV Additional District Judge, Lucknow " (1986 A.L.J. 618). it was held as under: "That the amendment sought was not only highly belated but clearly mala fide is apparent from the fact that the proceedings had commenced in 1977 and only five years later this plc was sought to be taken and that too during the pendency of an appeal. That the amendment was not moved bona fide is also clear from the fact that clear averments have been made in the written statement to the effect that it was P.N. Bhargava alone who was concerned with Baluna Commercial College and that his other two brothers had nothing to do with it nor he had anything to do with other two typing schools being run by his brothers. The purpose of the tenancy cannot be dissociated and it is obvious that the premises in dispute were taken for running a typing school in the name of Baluna Commercial College. The purpose of the tenancy cannot be dissociated and it is obvious that the premises in dispute were taken for running a typing school in the name of Baluna Commercial College. To take the plea of non-joinder at such a late stage gird that too in the face of the clear averments made in the written statement denying concern of others with these premises or the tenancy was clearly motivated by a desire to prolong the proceedings on these technical grounds which even on merits had no substance. The learned Addl. District Judge was, therefore, justified in rejecting the application for amendment. Learned counsel for the opposite party No. 2 (landlord) has relied upon Ishar v. Sudesh Kumar (AIR 1973 Punjab and Haryana 392). in support of the contention that an amendment of this nature if allowed would convert the defence into a totally different and inconsistent type of plea. Although the facts in that case were different but in principle it can not he denied that permitting the proposed amendment would wipe out the effect of admissions made by the tenant in that written statement, and would unnecessarily bring on record persons, who according to the own showing of the tenant are persons having no concern with the tenancy or the premises in question. In this view of the matter the amendment was rightly rejected and the petition is without merit." 6. The trial court apparently has considered the totality of the circumstances in disposing of the application and dwelt upon each and every proposed amendment and, thus, came to the conclusion that the application deserves to be rejected. The Opp. party is a Bank and the funds cannot be bartered away affecting the economy of the Nation and causing financial strain to the Bank. The intention of the applicant is apparent to prolong the proceedings and deny the Opp. party the fruits of the decree that may be passed. At the behest of the applicant the application has been filed at a belated stage and such an effort has to be decried. Moreover, in any case the discretion has been exercised on sound judicial principles and it is settled law that the revisional courts would not lightly interfere with the discretion of the court below unless it is found that the discretion has not been exercised in a judicial manner. Moreover, in any case the discretion has been exercised on sound judicial principles and it is settled law that the revisional courts would not lightly interfere with the discretion of the court below unless it is found that the discretion has not been exercised in a judicial manner. I do not find that the trial Court did not exercise she discretion in a judicial manner. 7. The revision is wholly ill-merited and deserves to be rejected. In the result, the revision fails and is hereby rejected with costs.