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2001 DIGILAW 136 (KER)

Sreedevi Vijayan v. State Bank Of Travancore

2001-02-28

K.A.MOHAMED SHAFI

body2001
ORDER K.A. Mohamed Shafi, J. 1. This C.R.P. is filed by the defendants in O.S.No.500/1998 on the file of the 1st Addl. Munsiff's Court, Ernakulam challenging the order in I. A.No.5099/2000 dated 18.7.2000. That application was filed by the plaintiff, respondent herein to amend the plaint under Order VI R.17 of the C.P.C. The lower court allowed the application as per the impugned order. Hence the above revision petition is preferred by the defendants - revision petitioners before this Court. 2. The above suit is filed by the respondent against the petitioners for realisation of Rs.56,032/- with interest alleging to be due from the defendants on a clean over draft facility to the tune of Rs.35,000/- granted on 24.3.1995. The petitioners filed written statement denying their liability for the claim. 3. At the stage of trial after examination of PW 1, the respondent filed the above I.A. seeking to delete para 4 of the plaint and to incorporate a fresh para 4 as set forth in the application. Though the petitioners objected to the amendment contending that the amendment will create a fresh cause of action in favour of the plaintiff and against the petitioners and it will take away the vested right accrued upon them, the lower court by finding that the cause of action will not change and the nature and character of the suit will not be changed by the proposed amendment and for determining the real questions in controversy between the parties in the suit the amendment is necessary, allowed the application. 4. In para 4 of the original plaint the respondent has alleged as follows: "4. The plaintiff Bank granted to the defendants a clean over draft facility to the tune of Rs.35,000/- (Rupees Thirty five thousand only) on 24.3.1995 with interest from that date at 5.25% above State Bank of India Advance Rate Minimum of 20.25% per annum with interest tax, applicable from time to time with quarterly rests. A period of 12 months was stipulated by the plaintiff Bank, for repayment. The plaintiff submits the loan amount was appropriated by the defendants on said date; ie; 24.3.1995 after executing an on Demand Promissory Note and D.P.Delivery Note cum Letter of Continuity in Form A-11 by both the defendants, in favour of the plaintiff Bank." 5. A period of 12 months was stipulated by the plaintiff Bank, for repayment. The plaintiff submits the loan amount was appropriated by the defendants on said date; ie; 24.3.1995 after executing an on Demand Promissory Note and D.P.Delivery Note cum Letter of Continuity in Form A-11 by both the defendants, in favour of the plaintiff Bank." 5. In the written statement the petitioners have contended that there is a document or evidence with the plaintiff Bank to show that the defendants have accepted Rs.35,000/- other than the demand promissory note and D.P. delivery note, that the demand promissory note and D.P. delivery note were executed without accepting any consideration, that the demand promissory note and D.P. delivery note were executed by both the defendants as the preliminary step as per the demand of the office of the plaintiff Bank for availing the over draft facility. 6. In spite of the above contentions raised by the petitioners in the written statement, the respondent proceeded with the suit and at the stage of trial after examining the Manager of the plaintiff-Bank as PW 1, the respondent has filed the above petition to amend the plaint. As per the amendment the respondent wanted to delete the sentence "plaintiff submits that loan amount was appropriated by the defendants on the said date ie 24.3.95 after executing an on Demand Promissory Note and Demand Promissory Delivery Note cum letter of continuity in Form A-11 by both the defendants in favour of plaintiff Bank" and to add the following in para 4: "The plaintiff submits the clean over draft facility was granted on execution of an on Demand Promissory Note. Demand Promissory Delivery Note cum letter of continuity in Form A-11 on the said day by both the defendants in favour of the plaintiff bank. This facility was granted to regularise an earlier transaction the defendants had with the plaintiff bank. The 1st defendant was maintaining a Savings Bank Account with the plaintiff bank asNo.16908. The said account was being operated by the 1st defendant regularly. The defendants gave a cheque for Rs.35,000/- for collection in the plaintiff bank. Under the impression that the said amount had been collected in the Savings Bank Account of the 1st defendant the amount was fully withdrawn by the 1st defendant. Subsequently the plaintiff detected that the cheque given by the defendants was dishonoured due to insufficiency of fund. The defendants gave a cheque for Rs.35,000/- for collection in the plaintiff bank. Under the impression that the said amount had been collected in the Savings Bank Account of the 1st defendant the amount was fully withdrawn by the 1st defendant. Subsequently the plaintiff detected that the cheque given by the defendants was dishonoured due to insufficiency of fund. The plaintiff informed the defendants that the 1st defendant had overdrawn the amount of Rs.32035.04 p. from her Savings Bank Account and they were called upon to repay the amount so overdrawn. Even though the defendants accepted the mistake, they expressed their inability to remit back the amount immediately. The defendants sought time for repayment of amount. As agreed by the defendants a separate over draft facility of Rs.35,000/- was sanctioned on 24.3.95 by the plaintiff granting 12 months time to repay the amount. The said amount of Rs.35,000/- was then transferred from the the overdraft account to the Savings Bank Account of the 1st defendant on 24.3.95, on the basis of an endorsement given by the defendant on the reverse of the voucher. The said voucher dated 24.3.95 and true extract of the statement of account of S.B. Account are produced herewith. Subsequent to the availing of the facility, the defendants made remittance to the over draft account, on several occasions. But thereafter they became irregular in remitting the balance amount." 7. The counsel for the petitioners vehemently submitted that deletion of portion of para 4 of the plaint and addition of the various averments as set forth in the amended application will create an entirely new case for the respondent against the petitioners changing the entire cause of action and the consideration for the transaction. In the original plaint the consideration alleged to have been paid on the over draft amount of Rs. 35,000/- was in cash whereas by amendment the respondent want to allege that the suit transaction is intended to regularise an earlier transaction between the petitioners and the respondent. According to him, such drastic amendment of the plaint changing the very nature and character of the suit and creating a fresh cause of action in favour of the plaintiff much to the detriment and against the vested rights of the defendants cannot be allowed under law. According to him, such drastic amendment of the plaint changing the very nature and character of the suit and creating a fresh cause of action in favour of the plaintiff much to the detriment and against the vested rights of the defendants cannot be allowed under law. Therefore, according to him, the lower court committed very grave error of jurisdiction and illegality in allowing the amendment sought for by the plaintiff. 8. The counsel for the respondent vehemently submitted that by the amendment sought for by the respondent has only explained and elaborated the case set forth by them originally in the plaint and absolutely no new material is brought up nor the cause of action is changed nor any prejudice will be caused to the revision petitioners by amending the plaint. The counsel for the respondent further submitted that amendment of plaint under order VI R.17 of the C.P.C. should be construed liberally and amendment should be allowed to avoid multiplicity of suits. She has also submitted that in this case the amendment does not constitute an addition of a new cause of action or a new case, but only adding to the facts already stated in the plaint and no right accrued to the respondent by lapse of time is taken away by the amendment. She has also submitted that absolutely no injustice will be worked out to the revision petitioners by allowing the amendment prayed for in the plaint. She has also submitted that since the amendment sought for is only to mould the reliefs on the very same plea and cause of action, adding some particulars to the facts already mentioned in the plaint will not change the nature and character of the suit. Therefore, according to her, the amendment allowed by the lower court in this case is perfectly justified, 9. In support of the above argument, the learned counsel for the respondent relied upon various decisions of the Supreme Court and this Court including the following rulings, viz. P.H. Patil v. K. S. Patil, ( AIR 1957 SC 363 ), Nichhalbhai v. Jaswantlal, ( AIR 1966 SC 997 ), A.K. Gupta & Sons v. Damodar Valley Corpn., ( AIR 1967 SC 96 ), Vineet Kumar v. Mangal Sain, ( AIR 1985 SC 817 ). P.H. Patil v. K. S. Patil, ( AIR 1957 SC 363 ), Nichhalbhai v. Jaswantlal, ( AIR 1966 SC 997 ), A.K. Gupta & Sons v. Damodar Valley Corpn., ( AIR 1967 SC 96 ), Vineet Kumar v. Mangal Sain, ( AIR 1985 SC 817 ). Damodara Poduval v. Sankar, (1991 (1) KLT SN 66 at page 47) and Majeed v. State of Kerala, ( 1997 (1) KLT 37 ). 10. The principles laid down in the above rulings by the Supreme Court as well as this Court with regard to the right of the court to allow amendment under Order VI R.17 of the C.P.C. are unassailable. But in this case those principles are of no help to the respondent. 11. As already noted in the original plaint the respondent has alleged a specific mode of transaction with regard to the passing of consideration between the petitioners and the respondent in the over draft facility granted by the respondent to the petitioners in this case. Though the very mode of transaction alleged by the respondent is denied by the petitioners in the written statement filed in the suit, the respondent proceeded with the trial of the case and examined the present Manager of the Bank as PW 1. PW 1 has deposed that the defendants applied for O.D. facility on 24.3.1995, that on the same day the Bank allowed O.D. facility and that the defendants received the amount on the same day. It is thereafter the respondent - Bank filed the above petition seeking to amend the plaint by deleting the averments originally made to the effect that the loan amount was appropriated by the defendants on the said date viz. 24.3.1995 after executing on demand promissory note etc. and adding a lengthy para by making various allegations to spell out a new transaction to the effect that the O.D. facility was allowed to regularise an earlier transaction between the revision petitioners and ' the respondent. If the amendment sought for is allowed, it will change the entire nature and character of the suit. The original contention was that on the very day the O.D. facility was sanctioned, the revision petitioners received the amount in cash as stated in para 4 of the plaint and deposed by PW 1. If the amendment sought for is allowed, it will change the entire nature and character of the suit. The original contention was that on the very day the O.D. facility was sanctioned, the revision petitioners received the amount in cash as stated in para 4 of the plaint and deposed by PW 1. Therefore, such an amendment changing the very nature and character of the transaction which will entail in grave prejudice to the defendants cannot be allowed under Order VI R.17 of the C.P.C. 12. In the decision in Sankaranarayanan v. Charumathi, ( 2001 (1) KLT 325 ) I have held that petition for amendment of plaint filed after the written statement is filed changing the mode of consideration mentioned in the plaint cannot be allowed under Order VI R.17 of C.P.C. Therefore, it is clear that the lower court have committed grave illegality and manifest error of jurisdiction in allowing the amendment sought for by the respondent which has to be interfered with by this Court by exercising the revisionary jurisdiction under S.115 of the C.P.C. Therefore, this C.R.P. is allowed and the impugned order is set aside.