Karnataka High Court
Sri. Talavane Krishna vs Sri. Barinder Agarwal on 6 June, 2017
Author: Aravind Kumar
Bench: Aravind Kumar
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF JUNE, 2017
BEFORE
THE HON'BLE MR.JUSTICE ARAVIND KUMAR
W.P.NO.2661/2017 (GM-CPC)
BETWEEN:
SRI. TALAVANE KRISHNA
S/O. LATE T. THIMAPPAIAH,
AGED ABOUT 66 YEARS,
PROMOTER / FOUNDER / DIRECTOR
INDUS VALLEY AYURVEDIC CENTRE
(PVT) LIMITED
R/O. TALAVANE FARM,
LALITHADRIPURA,
MYSORE - 570 010
...PETITIONER
(BY SRI. K.V.KRISHNAMURTHY, SR. COUNSEL FOR
SRI. PURUSHOTHAM, ADVS.)
AND:
1. SRI. BARINDER AGARWAL
S/O. ATMA RAM AGARWAL,
AGED ABOUT 47 YEARS
2. SMT. RENUKA AGARWAL
W/O. BARINDER AGARWAL,
AGED ABOUT 44 YEARS
BOTH ARE RESIDING AT NO.106,
2ND FLOOR, SHAKTI VIHAR,
PITAM PURA, NEW DELHI-110 034
...RESPONDENTS
(BY SRI. YOGANARASIMHA, SR. COUNSEL FOR SMT.
DEEPASHREE, ADVS.)
2
THIS WRIT PETITION IS FILED UNDER ARTICLE 227
OF THE CONSTITUTION OF INDIA, PRAYING TO SET ASIDE
ORDER DTD. 30.11.2016 PASSED BY THE COURT OF I
ADDL. CIVIL JUDGE, SENIOR DIVISION, AT MYSORE, IN
O.S.NO.738/2014 DISMISSING I.A.NO.4 OF 2016 FILED BY
THE PETITIONER UNDER ORDER VI RULE 17 OF CPC
SEEKING FOR AMENDMENT OF WRITTEN STATEMENT
ANNEX-A SO FAR AS TO AMENDMENT NO.2 OF THE
APPLICATION AND ALLOW THE SAID AMENDMENT.
THIS PETITION COMING ON FOR PRELIMINARY
HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
Petitioner is the defendant and respondents are plaintiffs in O.S.No.738/2014, which suit has been instituted for recovery of money of Rs.2,16,57,700/- contending interalia that said amount had been paid by the plaintiffs to the defendant by account payee cheques by transferring from their account to defendant's account and to secure repayment of said amount, defendant had executed a mortgage deed on 21.03.2012 by depositing the title deeds of the property as described thereunder.
2. Defendant on service of suit summons appeared, filed his written statement and denied the 3 averments made in the plaint except to the extent expressly admitted therein. On the basis of pleadings, issues came to be framed and parties have gone for trial. When the matter was set down for cross examination of plaintiffs' witnesses, an application for amendment of written statement came to be filed by defendant proposing to incorporate paragraphs 3(a), 3(b), 3(c), 3(d), 3(e), 16(a) and 16(b). This application was opposed by the plaintiffs and trial Court by the impugned order has rejected the said application on the ground that plea which was sought to be put forward is relating to the period of pre-execution of mortgage deed dated 21.03.2012 and defendant is not entitled to contend that he has made payment prior to execution of document by order dated 30.11.2016. Assailing said order, defendant is before this Court.
3. I have heard the arguments of Sri.G.Krishnamurthy, learned Senior Counsel appearing on behalf of Sri. Purushotham, for petitioner and Sri. 4 Yoganarasimha, learned Senior Counsel appearing on behalf of Smt.Deepashree, for respondents/plaintiffs.
4. Sri.G.Krishnamurthy, learned Senior counsel appearing for petitioner would fairly submit that petitioner/defendant would restrict his claim for amendment of written statement only in respect of Amendment No.2, whereunder defendant has sought to incorporate paragraph 3(6) only. Proposed amendment reads as under:
"AMENDMENT NO.2: After para No.3(a) to include a fresh para under reference No.3(b).
3(b). The Defendant submits that the Defendant from the money actually received by him repaid a sum of Rs.30,00,000/- (Rupees Thirty Lakh only) towards principal of the loan by way of three posted dated cheques bearing Nos.061111, 061112 and 061113 dated 1-10-2012 drawn on State Bank of Travancore, Mysuru Branch for a sum of Rs.10,00,000/- (Rupees Ten Lakh only) each. From the three cheques the last of the cheque bearing No.061113 came to be returned.
Thereafter the said amount was paid by the Defendant to the Plaintiff through cash. The Plaintiff has not 5 given deduction to the said sum in the course of the plaint."
5. It is sought to be pleaded by defendant under proposed amendment that three (3) payments came to be made by defendant to plaintiffs on 01.10.2012 under three (3) cheques and out of three (3) cheques one of the cheque had been dishonoured or in other words, it was not realized and defendant has also sought to plead that said amount was paid by cash to plaintiffs. In fact, Sri. Yoganarasimha, learned Senior Counsel appearing for respondents has contended that plaintiffs have been cross-examined on this aspect before trial court and as such, there is no need or necessity to plead this fact. When defendant is contending that he has paid the amounts to plaintiffs it is needless to state that burden is on him to prove the said fact namely, whether amounts have been paid to plaintiffs and if so, when, where and how such payment was made. Any exercise if undertaken by this Court to examine said plea on merits, it is likely to prejudice the 6 rights of both parties, hence no opinion is expressed in that regard.
6. Be that as it may. Perusal of written statement would indicate that defendant has pleaded certain amounts have been paid to plaintiffs and by proposed amendment defendant has sought to amplify or specifically plead as to when amounts namely Rs.30,00,000/- was paid by him. Amendment of written statement stands on a different footing than amendment of a plaint and in case of SUSHIL KUMAR JAIN vs. MANOJ KUMAR & ANOTHER reported in AIR 2009 SC 2544 Hon'ble Apex Court has held that even admission made in the written statement can be explained or amplified and Court has to adopt more liberal approach than adopting the approach for allowing amendment of plaint.
7. In the light of said law enunciated by the Apex Court and taking into consideration that defendant had already pleaded that he had paid certain amounts to plaintiffs and now by proposed amendment 7 namely, Amendment No.2 defendant is seeking to incorporate paragraph 3(b) to the written statement specifying thereunder that he has paid an amount of Rs.30,00,000/- to plaintiffs, if allowed to be incorporated, no prejudice would be caused to plaintiffs. As already observed hereinabove, burden is on the defendant to establish the said fact and no amount of plea would amount to proof and any plea raised has to be proved.
8. In that view of the matter, I proceed to pass the following:
ORDER
(i) Writ petition is hereby allowed in part.
(ii) Order dated 30.11.2016 dismissing I.A.No.4/16 in O.S.No.738/2014 by I Addl. Civil Judge, Senior Division, Mysore, is hereby set aside in part.
(iii) Application filed under Order VI Rule 17 CPC for amendment of written statement - Annexure-D is hereby 8 allowed in part namely, to the extent of permitting the defendant to incorporate paragraph 3(b) in the written statement only and order of trial Court rejecting the application for amendment to incorporate other paragraphs in written statement is hereby affirmed.
Ordered accordingly.
SD/-
JUDGE DR