Kerala High Court
M/S. Indian Overseas Bank, ... vs Sreejitha on 3 September, 2024
OP(C) NO. 506 OF 2023 1 2024:KER:66735
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE M.A.ABDUL HAKHIM
TUESDAY, THE 3RD DAY OF SEPTEMBER 2024 12TH BHADRA, 1946
OP(C) NO. 506 OF 2023
OS NO.145 OF 2010 OF SUB COURT,ATTINGAL
PETITIONER/PETITIONER/3RD DEFENDANT:
M/S. INDIAN OVERSEAS BANK, KEEZHATTINGAL BRANCH
N P BUILDING, KEEZHATTINGAL P O REPRESENTED BY
ITS BRANCH MANAGER, MRS. ARCHANA MOHAN,
MANAGER, PIN - 695101
BY ADVS.
SUNIL SHANKER
VIDYA GANGADHARAN
SANDHRA.S
RESPONDENTS/PETITIONERS AND RESPONDENTS 1,2,4 TO
6/PLAINTIFFS AND DEFENDANTS 1,2,4 TO 6:
1 SREEJITHA, AGED 33 YEARS, W/O.DHANESH, RESIDING
AT SIVOM, TOLL MUKKU, AVANAVANCHERY P.O.,
ATTINGAL, THIRUVANANTHAPURAM, PIN-695103.
2 AASHIK DHANESH, S/O.DHANESH, RESIDING AT SIVOM,
TOLL MUKKU, AVANAVANCHERY P.O., ATTINGAL,
THIRUVANANTHAPURAM, PIN-695103.
3 AKSHAY DHANESH, S/O.DHANESH, RESIDING SIVOM,
TOLL MUKKU, AVANAVANCHERY P.O., ATTINGAL,
THIRUVANANTHAPURAM, PIN-695103
OP(C) NO. 506 OF 2023 2 2024:KER:66735
4 SHAILAJA, AGED 54 YEARS, W/O.LATE PRAKASH,
RESIDING AT SREENANDANAM, VALIYAKUNNU,
AVANAVANCHERY P.O., ATTINGAL,
THIRUVANANTHAPURAM, PIN-695103
5 STATE BANK OF TRAVANCORE (PRESENTLY SBI),
A NATIONALISED BANK REGISTERED UNDER BANKING
COMPANIES ACT, HAVING BRANCH OFFICE AT VARKALA,
REPRESENTED THROUGH ITS MANAGER, VARKALA BRANCH,
THIRUVANANTHAPURAM, PIN-695141
6 THE ATTINGAL URBAN CO-OPERATIVE BANK
REPRESENTED BY ITS SECRETARY, ATTINGAL URBAN
SERVICE CO-OPERATIVE BANK, ATTINGAL MAIN
BRANCH., PIN - 695103
7 VILASINI RAJU, W/O.PRIYA NIVAS, THINAVILA,
KEEZHATTINGAL VILLAGE, THIRUVANANTHAPURAM,695101
8 PRASANNA SUVEDAN, W/O.SUDEVAN, D.M.HOUSE, BTS
ROAD, ATTINGAL, THIRUVANANTHAPURAM, PIN-695103
9 PRASAD, S/O.BHARGAVAN, PULLUVILA HOUSE,
THINAVILA, KEEZHATTINGAL, THIRUVANANTHAPURAM,,
PIN - 695101
BY ADVS.
G.P.SHINOD
R.S.KALKURA
M.S.KALESH(K-275)
HARISH GOPINATH(K/232/1999)
SILPA S.(K/951/2017)
GOVIND PADMANAABHAN(K/925/2010)
AJIT G ANJARLEKAR(K/000083/2014)
ATUL MATHEWS(K/1675/2018)
GAYATHRI S.B.(K/2005/2020)
SRI. JITHESH MENON, SC, SBI
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON
03.09.2024, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
OP(C) NO. 506 OF 2023 3 2024:KER:66735
JUDGMENT
The 3rd defendant in the suit has filed this Original Petition challenging Ext.P5 order allowing amendment of the plaint.
2. The suit was filed initially for declaration of title and consequential reliefs with respect to certain immovable properties and deposits in the name of the father of the 1 st plaintiff in various banks scheduled in the suit. The plaintiff's claim was based on Ext.B1 Will.
3. The plaintiffs are the daughter of the testator and her children. The 1st defendant is the wife of the testator and the 2 nd defendant is the mother of the testator and the defendants 3 to 6 are various banks with which the deposits were made by the testator.
4. The 3rd defendant filed a written statement contending that the deposits with them in the name of the testator were already released to the 1 st defendant. Thereupon, the plaintiff filed I.A. No.72/2011 directing the respondents 2 to 6 OP(C) NO. 506 OF 2023 4 2024:KER:66735 therein, including the 3rd defendant, to produce certain documents. Even though there was an order to produce the documents, the 3rd and 4th defendants did not produce any such document. After the commencement of the trial, the Manager of the 3rd and 4th defendants produced some documents, and then only, according to the plaintiffs, they came to know about the fraud committed by defendants 3 and 4 in collusion with the 1 st defendant in getting the release of the fixed deposits.
5. Accordingly, the plaintiff initially filed I.A. No.5/2020 seeking an amendment of the plaint to incorporate the relief of recovery of money from the defendants/banks. During the pendency of the said I.A., the plaintiff noticed certain defects in the I.A., and accordingly, the said I.A. was not pressed, and thereafter, the present I.A.No.3/2021 was filed, which led to the passing of Ext.P5 order. The Trial Court allowed the said I.A. finding that the amendment is necessary to determine the real question in controversy in the suit and the bar under Proviso to Rule 17 of Order 6 CPC is not applicable.
OP(C) NO. 506 OF 2023 5 2024:KER:66735
6. I heard the learned Standing Counsel for the petitioner and also the learned counsel for the 1 st respondent.
7. The learned Standing Counsel for the petitioner submitted that if the amendment is allowed it will change the nature and character of the suit. The Standing counsel contended that there was an inordinate delay in filing the Amendment Application even after the production of the documents by the 3rd defendant. Initially, the plaintiff had filed I.A. No.5/2020 and after much delay, the same was not pressed and filed the present application. The Standing Counsel contended that the amendment is barred under Proviso to Order 17 Rule 6 of CPC.
8. On the other hand, the learned counsel for the 1 st respondent submitted that the prayer for amendment was delayed only on account of the delayed production of the documents in spite of specific direction by the Court. The defendants banks were only responsible for the delay in seeking the amendment. If they had produced documents which were OP(C) NO. 506 OF 2023 6 2024:KER:66735 directed to be produced in I.A. No.72/2011, the plaintiff would have filed an Application for Amendment much earlier.
9. On going through the impugned order, I find that the Trial Court allowed the amendment, finding that the amendment is necessary for determining the real controversy in the suit. It is clear from the pleadings that the fixed deposits with the 3 rd defendant bank are also included in the plaint schedule items. The present amendment was necessitated only because of the fact that the defendant banks released the fixed deposit amounts, which are included in the plaint schedule, to the 1 st defendant. As rightly pointed out by the learned counsel for the 1 st respondent that defendants 3 and 4 did not produce the relevant documents when I.A. No.72/2011 seeking direction against them was filed and the court passed the order to produce the said documents. Hence the plaintiffs could not be blamed for the delay in filing the application for amendment. The claim sought to be included by way of amendment is based on the alleged fraud played by the banks in collusion with the 1st defendant. According to the OP(C) NO. 506 OF 2023 7 2024:KER:66735 plaintiffs, they came to know about the fraud only on 06.11.2020 and 18.11.2020, when the Managers of defendants 3 and 4 were examined and when the documents were produced. When the claim is based on fraud, the limitation starts only from the date of knowledge of the fraud. Whether there is fraud on the part of defendants 1, 3, and 4 is a matter for the Trial Court to adjudicate. Since the fixed deposits are already included in the schedule and the reliefs are sought with respect to the same by way of amendment it will not change the nature and character of the suit.
Accordingly, I do not find any merit in this original petition and the same is accordingly dismissed.
Sd/-
M.A.ABDUL HAKHIM
JUDGE
ncd
OP(C) NO. 506 OF 2023 8 2024:KER:66735
APPENDIX OF OP(C) 506/2023
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF THE PLAINT IN O.S.
NO.145/2010, SUB COURT, ATTINGAL DATED 20.5.2010 Exhibit TTRUE COPY OF THE WRITTEN STATEMENT FILED BY THE 3RD DEFENDANT IN O.S. NO.145/2010, SUB COURT, ATTINGAL DATED 3.6.2011 Exhibit P3 TRUE COPY OF THE AMENDMENT APPLICATION I.A. NO.3/2021 IN O.S. NO.145/2010, SUB COURT, ATTINGAL DATED 18.11.2021 Exhibit P4 TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY THE 3RD DEFENDANT TO THE AMENDMENT APPLICATION I.A. NO.3/2021 IN O.S. NO.145/2010, SUB COURT, ATTINGAL DATED 6.12.2021 Exhibit P5 CERTIFIED COPY OF THE ORDER IN I.A. NO.3/2021 IN O.S. NO.145/2010, SUB COURT, ATTINGAL DATED 9.1.2023