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1996 DIGILAW 630 (BOM)

Vandana S. P. Salgaonkar v. Bank of India and another

1996-12-05

R.K.BATTA

body1996
JUDGMENT - R.K. BATTA, J.:---The petitioner (defendant No. 2 in the suit and sole proprietor of defendant No. 1) has sought amendment to the written statement which was rejected by Civil Judge S.D., Vasco-da-Gama and it is this order which is challenged in this revision. 2.Learned Advocate Shri A.P. Lawande for the petitioner, after placing before me the facts giving rise to the amendment application, submitted before me that the amendment is neither mala fide nor will it cause prejudice to the opposite partly and that the lower Court erred in rejecting the amendment application. He placed reliance on (Jai Jai Ram Manohar Lal v. National Building Material Supply, Gurgaon)1, A.I.R. 1969 S.C. 1267, (Anitha Swain v. Nilakantha Biswal)2, A.I.R. 1969 Orissa, 267, (Babarao s/o Rajaram Deshmukh v. Sonba s/o Janu Bhai)3, A.I.R. 1976 Bombay, 332, (M/s. Ganesh Trading Co. v. Moji Ram)4, A.I.R. 1978 S.C. 484, (Prasant Chandra Sen v. United Commercial Bank and another)5, A.I.R. 1982 Calcutta, 555 and (Vineet Kumar v. Mangal Sain Wadhera)6, A.I.R. 1985 S.C. 817 and submitted that the revision be allowed. 3.On the other hand, the revision is being opposed by Advocates for the respondents. Learned Advocate Shri M.M. Rao for respondent No. 1 has contended that the lower Court has not rejected the amendment application on the ground of delay and as such the rulings of the Bombay High Court and Orissa High Court have no application to the facts and circumstances of the case. He placed before me the material dates and submitted that the main defence in the original written statement was limitation; that there was no denial that the petitioner was sole proprietor of defendant No. 1; that there was no denial of execution of documents relating to loan as well as acknowledgment of the loan and what is now sought to be brought about by the amendment is to withdraw the admissions which are so vital for the decision of the case and in case the amendments are allowed, the same will cause serious prejudice to the respondents. He also submitted that the liability in respect of the loan in question had also been listed in the insolvency petition filed by the petitioner; that the amendment sought is totally mala fide and relying upon the decision in (M/s. Modi Spinning and Weaving Mills Co. He also submitted that the liability in respect of the loan in question had also been listed in the insolvency petition filed by the petitioner; that the amendment sought is totally mala fide and relying upon the decision in (M/s. Modi Spinning and Weaving Mills Co. Ltd. and another v. M/s. Ladha Ram and Co.)7, A.I.R. 1977 S.C. 680, it was submitted that the revision is liable to be dismissed. Advocate Shri G.V. Tamba for the guarantor has adopted the arguments advanced by Advocate Shri M.M. Rao and his contention is that the amendment would totally change the stand of the petitioner. 4.In order to appreciate the controversy involved in this revision, it is necessary to note down certain details which have bearing in the matter. In the original written statement there was no denial that the petitioner was sole proprietor of defendant No. 1; there was no denial of execution of documents and also acknowledgment relating to liability of the loan in question. The suit was filed on 14-8-84 and common written statement was filed by the petitioner on 29-4-85. The main defence in the written statement was limitation alone. The husband of the petitioner died somewhere in November, 1988; the application for bringing legal heirs on record was filed on 24-2-89 and vide application dated 23-3-90 the legal heirs adopted the original written statement. It is pertinent to note that the petitioner acted as guardian for the legal heirs while adopting the written statement. In June, 1991 insolvency petition was filed by the petitioner wherein the amount involved in this proceeding was listed as liability by the petitioner. The amendment application in question was filed on 22nd February, 1993. By the said amendment the petitioner wants to nullify the admissions contained in the written statement on the ground that the entire business of defendant No.1 was being carried out by her husband; that she was not at all aware of any details in respect of the same; that her signatures were obtained by her husband and at times she used to sign blindly even without reading the same. She further contends that all documents were obtained fraudulently. 5.The lower Court examined the whole issue of amendment in correct perspective and I do not find any jurisdictional error or any other sufficient reason or justification to interfere with the impugned order. She further contends that all documents were obtained fraudulently. 5.The lower Court examined the whole issue of amendment in correct perspective and I do not find any jurisdictional error or any other sufficient reason or justification to interfere with the impugned order. The rulings of the Bombay High Court and Orissa High Court are on question of delay and it has already been pointed out by learned Advocate Shri M.M. Rao that the amendment was not rejected on the point of delay and as such the said rulings are not attracted to the facts and circumstances of this case. It is no doubt true, as pointed out by the Apex Court, that the procedural laws are intended to facilitate and not to obstruct the cause of substantive justice, but that by itself, is not sufficient to grant an advantage to an adversary unless, of course, good and proper case is made out for exercising discretion in favour of a party for the said purpose. 6.There is no dispute that the husband of the petitioner died somewhere in November, 1988 and the legal heirs were brought on record somewhere in the year 1989/90. The petitioner acted as guardian for the legal heirs and filed written statement on their behalf adopting the original written statement. It is important to note that the petitioner was represented by an Advocate when the written statement was adopted by her as guardian for the minors. This whole object of the petitioner in moving this application for amendment is somehow or the other to get out of the admissions made in the original written statement. I am in complete agreement with learned Advocate Shri M.M. Rao that the amendment application is not only filed with mala fide intention but it deprives the respondents of a valuable right which has been accrued to them. The lower Court had relied upon the ruling of the Supreme Court in (M/s. Modi Spinning and Weaving Mills Co. Ltd. and another v. M/s. Ladha Ram and Co.), A.I.R. 1977 S.C. 680, which is directly attracted to the facts and circumstances of the case. Another fact which was taken into consideration by the trial Judge was that in the insolvency petition filed by the petitioner the amount in the suit was listed as liability. Ltd. and another v. M/s. Ladha Ram and Co.), A.I.R. 1977 S.C. 680, which is directly attracted to the facts and circumstances of the case. Another fact which was taken into consideration by the trial Judge was that in the insolvency petition filed by the petitioner the amount in the suit was listed as liability. It is therefore, clear that the petitioner wants to set up an entirely new case in order to totally offset the stand in the previous written statement. 7.For the reasons mentioned above, I do not find any merit in this petition as I am of the view that the lower Court was perfectly justified in rejecting the amendment application. Revision accordingly stands dismissed. Rule discharged accordingly. Costs shall be borne by the petitioner. Petition dismissed.