Calcutta High Court (Appellete Side)
Canara Bank vs The Bank Of Rajasthan Limited & Another on 14 July, 2010
Author: Tarun Kumar Gupta
Bench: Tarun Kumar Gupta
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IN THE HIGH COURT AT CALCUTTA
CIVIL REVISIONAL JURISDICTION
APPELLATE SIDE
Present: The Hon'ble Mr. Justice Tarun Kumar Gupta
C.O. No.2964 of 2005
Canara Bank
Versus
The Bank of Rajasthan Limited & Another
For the petitiioner: Mr. Sabyasachi Bhattacharyya
Mr. Bhaskar Mukherjee
For the Defendant No.2: Mr. Ram Narayan Vyas
Mr. Sandip Bhagar
Heard on: 06.07.2010
Judgment on: July 14, 2010
Tarun Kumar Gupta, J.:-
This revisional application under Article 227 of the Constitution of India is
directed against the order No.61 dated 14.07.2005 passed by Sri M. M. Sarkar
learned Judge 13th Bench, City Civil Court, Calcutta in Money Suit No.405 of 1999.
The case of the petitioner/plaintiff Canara Bank is that respondent No.1 Bank
of Rajasthan Limited on 21st March, 1996 presented in the usual course of business through clearance a demand draft having leaf serial No. MDEB/C 405197 and 2 bearing No.600402 dated 19.03.1996 for Rs.4 lakhs purportedly issued by Bhora Branch (Bihar) of the petitioner bank apparently in favour of respondent No.2 Garg Trading Company and that the petitioner in good faith honoured the said draft and paid a sum of Rs.4 lakhs to respondent No.1. In and about July 1996 at the time of reconciliation of the accounts it was detected that no such demand draft dated 19.03.1996 was issued from the said branch and that on scrutiny it came out that the signatures alleged to be manager and authorized signatory of the plaintiff bank were forged and that the said leaf having serial No.405197 was reported to be lost from the said Bhora Branch sometime in the end of 1995 and that after detection of the said fraud the plaintiff/petitioner asked the respondent No.1 bank to reimburse the said sum of Rs.4 lakhs which was denied and thereafter a complaint lodged with Central Bureau Investigation was proceeding and that the petitioner bank accordingly filed the said money suit being No.405 of 1999 against both the respondents demanding refund of principal amount of Rs.4 lakhs with interest. The O.P./defendants appeared in the said Money Suit and contested the same. After closing of evidence of both sides when the matter was fixed for argument it came out on scrutiny of papers that there were certain factual mistakes committed in the plaint filed by the petitioner bank and the some of the dates were not tallying with the evidence on record and that there was also wrong pleading regarding the cause of action and accordingly the petitioner/plaintiff filed a petition of amendment in three places as 3 per schedule of amendment of the said petition of amendment. Learned Trial Court allowed the said petition in part and only allowed item No.1 of the schedule of the amendment and refused amendment relating to item Nos. 2 and 3 in the schedule.
Learned Advocate Mr. Sabyasachi Bhattacharyya assisted by learned Advocate Mr. Bhaskar Mukherjee for the petitioner/plaintiff has submitted that as per proviso of order 6 Rule 17 C.P.C. no plaint for amendment shall be allowed after the trial is commenced, unless the Court comes to the conclusion that in spite of due diligence, a party could not have raised the matter before the commencement of trial, is not applicable in this case as this is an old case of 1999 and those amendments came into force with effect from 1st of July, 2002. In this connection he has also raised a case law reported in 2007 (1) SCC page 765.
He has further submitted that the learned Trial Court refused amendment of item No.2 and 3 illegally in coming to the conclusion that the amendment of item No.2 was sought for without producing any material on record though in fact evidence tendered on behalf of the petitioner was already on record in support of the said item No.2.
According to him similarly learned Trial Court rejected the amendment under item No.3 on mere misreading of the plaint and opining that by allowing the said amendment it will affect and / or take away the cause of action of the suit. According to him learned Trial Court failed to note that those amendments were 4 merely formal in nature and were in consonance with already evidence on record and that those amendments would not change the nature and character of the suit and that those amendments were required for just decision of the case.
Learned Advocate Mr. Ram Narayan Vyas assisted by Mr. Sandip Bhagar for the O.P./respondent on the other hand has submitted that there is no scope of allowing those amendments by exercising powers of revision under Article 227 of the Constitution as learned Trial Court did not act with any illegality or irregularity by rejecting proposed amendment serial Nos.2 and 3 as those amendments were going to affect the O.P./defendants as trial was already over.
It appears that by way of amendment in serial No.2 of the schedule the petitioner/plaintiff has wanted to insert the words "end 1995" in place of "July 1996"
in Para 4 (ii) which runs as follows:-
"The demand draft leaf having serial No.405197 was also reported lost by the said Bhora Branch sometime in July 1996 and therefore the purported demand draft containing the said serial number could not have been and was not issued by the said branch of the plaintiff to anybody."
Similarly by serial No.3 of the schedule of amendment the petitioner/plaintiff has wanted to delete the words "draft was encashed" from paragraph 16 of the plaint which runs as follows:-
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"The cause of action arose on 30th July, 1996 at premises No.60/1/G Nirmal Chandra Street Police Station Muchipara, Calcutta-700012 when the draft was encashed and fraud or mistake was detected within the jurisdiction of this learned Court and therefore this learned Court has jurisdiction to entertain try and determine the suit."
On perusal of the copy of the plaint and the item Nos. 2 and 3 of the schedule amendment it does not appear to this Court that proposed amendments, if allowed, will change the nature and character of the suit. Rather it appears that those amendments were for lazy drafting of the plaint by the learned Advocate without taking proper care and that proposed amendments in item Nos. 2 and 3 of the schedule of amendment are required for proper adjudication of the suit. It is true that evidence has already been closed and by allowing the amendment the O.P./defendants have to be given opportunity to file additional W.S., if any, as well as further evidence, if any, only touching those amendments.
Accordingly, I am of the opinion that the learned Trial Court failed to exercise jurisdiction so vested in him by law by disallowing the proposed amendments in item Nos. 2 and 3 in the schedule of amendment and this Court should allow the revisional application under Article 227 of the Constitution of India for ends of justice. 6
As a result, the revisional application C.O. No.2964 of 2005 is allowed on contest. The impugned order dated 14.07.2005 is set aside partly so far as it relates to rejection of the amendment relating to item Nos. 2 and 3 in the schedule of amendment of the amendment petition of the petitioner/plaintiff. However, the O.P.s / Defendants are certainly entitled to sufficient cost for this belated amendment of plaint.
Learned Trial Court is hereby directed to permit the petitioner/plaintiff to file amended plaint showing amendments of item Nos. 2 and 3 also only on payment / deposit of cost of Rs.5,000/- in favour of each defendant and then to permit the O.P./defendants to file additional W.S., if any, and also to adduce further evidence, if any, only touching those amendments allowed by this Court. If the petitioner/ plaintiff fails to show payment / deposit as stated above at the time of filing amended plaint this order of allowing amendment will stand recalled and the case will proceed as per law.
Xerox certified copy of this judgment be supplied to the Counsels of the party / parties, if applied for.
(Tarun Kumar Gupta, J.)