Civil Suit No. 9 of 2002 · High Court · 2003

We have heard Shri-~A`. Mbulik, 1eamed counsel for the petitioner and Shri A. K. Upadhyaya, leaned counsel for the contesting respondents.

2. This is an application under Article 227 of the Constitution of India by which the petitioner seeks to assail the validity of the order dated loth June, 2003 of the learned District Judge, Special Division-I, Gangtok rejecting its prayer for amendment of the plaint in Civil Suit No. 9 of 2002. V a o ,,,D Office Note as to action (jf any) taken on Order Order with Signature

3. The petitioner as plaintiff has fil;d money suit against the respondents for Rs.75,081/- with interest thereon and other consequential reli.efs. Its case is respondent 2 on behalf of respondent 1 applied to it for a loan of Rs.2 lakhs as working capital for the purpose of business in the name and style of M/s. Super Auto Agency under the scheme of Cash Credit facility. On consideration of the said. application, the petitioner sanctioned Cash Credit limit of Rs.2 lakhs to rthe respondent 1 on 5th Nov.ember, 1998. The respondents 1 and 2 as borrowers and respondent 3 is guarantor duly executed necessary agreement for hypothe-cation and guarantee regarding hypothecation cif goods etc. as security for repayment of the loan with. .interest @14% per annum. . They have also given their personal guarantee for repayment of the loan with accrued interest thereon. The res.pondents, however, have failed. to clear up theo in.or`.ey and the suit amounts till otitstanding against them. Hence the suit.

4. The respondents filed written statement wherein they have admitted that on their application Cash Credit limit of Rs.2 lakhs was sanctioned in their favour on 5th ,November, 1998. On 4th November, 1998 respondent 2 withdrew an amount of Rs.58,410/- and Rs.56,364/- from his account in Deorali branch of State Bank .of India and deposited those two amounts on the next day in two fixed d.eposits in his name with the -petitioner with assurances that on maturity the said amounts with accrued interests would be paid to him. On 25th October, 1999 the petitioner returned a cheque of Rs.5,000/- presented by respondent 2 with endorsement refer to the drawer', although the balance was well within the sanctioned limit-of Rs. 2 lakhs. Subsequently also the petitioner refused to pay the cheques issued by respondent 2 from time to time without any reason although he (respondent 2) had not overdrawn any amount. Besides this, the petitioner illegally adjusted the •R::i:i,Order DateofOrder Order with Signature Office Note as toaction(ifany)takenonOrder aforesaid two rixed deposits in its accounts evethoughthesaidrixeddepositshavenotmatured.

5. While the matter stood thus, thpetitionerfiledanapplicationforamendmentotheplaintforadditionofthefollowinparagraphs:- "8A. That records an documents duly signed by thdefendantNo.2whichareincustodyotheBankshowthatwhiletakinglofromtheBank,thedefendantNo.2atheproprietorofthedefendantNo. had agreed and furnished the tw STDRs stated by them in the writte statement as security for the loan. Ithisregardprescribedformo agreement was signed and fumishe by the defendant No.2 on 5-11-199 through which the two STDRs date 26-5-1998 and 6-2-1998 fo Rs.55,191/-each were kept as seculfortheloan.Intheformofagreement,ithasbeenclearlyspeltoutthatinth event of the loan remaining unpaid thloaneeauthorisedtheBankthatthe money due and payable to the Ban shall be realised from the securities namely from the two STDRs mentioned in the schedule to the said form.

88. That the appraisal formwhichbearsthesignatureofthe defendant No.2 as the proprietor oSuperAutoAgencyalsoshowsthathe had kept the STDRs aLs collateral security towards guarantee o repayment of the loan to the Bank. The Bank had never assured repayment of the money in the twofixeddeposits. Serial No. ofOrder Date ofOrder Order with Signature 0'e_t Office Note as oaction(ifany) taken on Order 8C. That even the other documents signed by the defendant No.2 had agreed that the Bank may recover its dues from the receivables of the defendants in case the defendants do not repay the loan with interest."6.Thegroundfortheproposed amendment was that due to inadvertence and inadequate instructions particulars of two fKT eddepositsmadeon26thMay,1998and6thFebruary,1998forRs.51,191/-eachcouldnotbe stated in the plaint. The respondents ffled written objectiontotheamendmentontheground,frotera!kythat earlier when question of supply of somedocumentsarose,thepetitionerwithregardtothe fKed deposit certificates stated that it did not want to rely on them.

7. The learned trial Judge upheld the above objection raised by the respondent and bytheimpugnedorderrejectedtheappl`icgtio?for amendment of the plaint. :i. ;.1 \

8. On perusal of the impugned order, wehavenohesitationtoholdthatthelearned.trial Judge fen into error in refusing the prayer foramendmentoftheplaint.Wemaynoteherethat the trial of the suit has not yet commenced. As a matter of fact, issues have not yet framed. The suit is, therefore, at a very preliminary stage. By bringing the facts pleaded in the proposedamendment,therewouldbenochangeofthenatureorcharacterofthesuit.Admittedly,the petitioner has already adjusted the two fixed deposits made by the respondents. Respondentsnow,therefore,cancanvassinthesuitastowhetherthepetitionerisjustifiedinadjustingthetwofckeddeposits.Bytheamendmentas proposed, the respondents wo.uld not be in anywayprejudiced.Theapprehensionofthelearnedtrial Serial No. ofOrder Date ofOrder Order with Signature Office Note as to action (if any)takenonOrder Judge that if the amendment is allowed it woul amount to introduction of new facts is without an basis.9. For the reasons stated above, th tjjrfu fro fuJ.®h~ ' " a_ 03 #ts--fut#¥: Impugned order passed by the leaned trial Judg cannot be sustained in law which is hereby seaside.TheamendmentsoughtforbythpetitionerisherebyallowedsubjecttopaymentocostofRs.1,000/-whichshallbepaidtoth respondents by 6th September, 2003 in the tri Court. The petitioner is hereby directed to supplcopiesofthetwofixeddepositscertificatestoth respondents by 15th September, 2002. In view o the fact that we have allowed the amendment o the plaint, the respondents are at liberty to liladditionalwrittenstatement.Theymayalsomak counter claim if so advised. The lower Co records may be sent back forthwith. ]0. The.writ application is accordingl allowed. No costs. I, /IV.Ns%aman!s!ng„ /R.K.Pdera/ I udge Chiof Jhas.toe 1 8.o8.2oce 1 3.b8.2oae