Punjab-Haryana High Court
Vijay Kumar And Ors. vs State Bank Of India on 22 December, 2005
Equivalent citations: (2006)142PLR540
Author: S.S. Saron
Bench: S.S. Saron
JUDGMENT S.S. Saron, J.
1. This revision petition under Article 227 of the Constitution of India has been filed against the impugned order dated 8.10.2005 passed by the learned District Judge, Faridkot, whereby the application filed by the respondent-State Bank of India under Order 6 Rule 17 of the Code of Civil Procedure ('CPC' for short) for amendment of the plaint and under Order 41 Rule 27 C.P.C. for production of additional evidence has been allowed.
2. The plaintiff-respondent State Bank of India ('Bank' for short) filed a suit for recovery of Rs. 1,71,565/- from the defendants-petitioners. It was alleged that Des Raj Chawla (defendant No. 1-since deceased and now represented by his LRs) was working as an Accountant with the Bank at Baghapurana during the period from 1987 to 1991. His sons Vijay Kumar (defendant No. 2), Vinod Kumar (defendant No. 4) and defendants No. 6, 7 and 8 were maintaining accounts with the Bank. The defendants conspired amongst themselves to defraud the Bank. They committed fraud to the extent of Rs. 2,06,700/-. The defendants gave various cheques to the plaintiff-Bank at Baghapurana and Des Raj Chawala (since deceased) unauthorisedly purchased the same and gave credit to the payees i.e. defendants No. 2 to 8 in their respective accounts and they withdrew the amount from their respective accounts. Thereafter, Des Raj Chawla (since deceased) is alleged to have destroyed these cheques or managed that they are not dispatched for collection or he destroyed the advices of dishonour of cheques received from the drawee Bank so as to suppress the fraud committed by him. On this account the Bank was defrauded to the tune of Rs. 2,05,760/-. It is also alleged that Des Raj Chawla (since deceased) had availed a loan from the State Bank of India Cooperative Society, Muktsar and he was repaying the same in installments of Rs. 470/- per month. He issued cheques dated 25.1.1991 and 25.2.1991 for an amount of Rs. 470/- each in favour of the said Co-operative Society and requested the said Society to purchase these cheques which request was acceded to by the Society and these cheques were purchased vide DD No. 2900 and 3227/-. However, when these cheques were received by the plaintiff-Bank, Baghapurana for actual payment, defendant No. 1 destroyed the same and defrauded the Bank of Rs. 940/-. In this manner, the defendant No. 1 is stated to have committed fraud of Rs. 2,06,700/- i.e. Rs. 2,05,760/- by purchase of cheques from defendants No. 2 to 8 and then destroying the cheques or by not dispatching them for collection or destroying the advices of dishonour of cheques received from drawee Bank and also by purchase of cheques of Rs. 940/- for the installments given to the Cooperative Society which works out Rs. 2,06,700/-. The suit was contested by the defendants on various grounds. The learned Civil Judge (Junior Division), Moga, vide judgment and decree dated 16.2.2001 dismissed the suit of the plaintiff-Bank, The plaintiff-Bank filed an appeal against the aforesaid judgment and decree dated 16.2.2001 before the learned District Judge, Faridkot. During pendency of the appeal, the plaintiff-Bank filed an application for amendment of the plaint and for grant of permission to lead additional evidence which as already noticed has been allowed by the impugned order , which is assailed by the defendants-petitioners.
3. Learned Counsel appearing for the petitioners submits that the learned District Judge erred in allowing the application for leading additional evidence and amendment of the plaint. It is submitted that in fact amendments sought to be carried out with regard to date of knowledge of the cause of action accruing to the plaintiff-Bank cannot be considered to be a typographical mistake or a result of oversight. It is contended that the plaintiff-Bank by way of the amendment being allowed to correct the date of the accrual of cause of action from 15.4.1991 to 27.5.1991 amounts to withdrawing of a valuable admission made on behalf of plaintiff-Bank which prejudices the rights of the petitioners. Besides, such an amendment is not to be allowed after trial has commenced in terms of the proviso added to Order 6 Rule 17 of the Code of Civil Procedure ('CPC' for short) by way of amendment to the C.P.C. in pursuance of C.P.C. (Amendment) Act 2002. It is contended that the case of the plaintiff-Bank is that the fraud came to its knowledge on 15.4.1991, therefore, this date is not liable to be changed at this stage. As regards the application for additional evidence being allowed, it is contended that the plaintiff-Bank seeks permission to adduce the investigation report dated 15.4.1991 on the ground that the same could not be produced due to the negligence of the counsel. Besides, the affidavit of Vijay Kumar whereby he undertook to pay the dues of the Bank and the fact that some amounts have been deposited by Vijay Kumar (Petitioner No. 1) is not liable to be allowed in view of the statement recorded on 13.5.1998. Therefore, the affidavit of Vijay Kumar dated 9.5.1997 sought to be placed on record is of no significance. It is contended that no cross-examination was put to Vijay Kumar when his statement was recorded with regard to the affidavit dated 9.5.1997. Besides, the learned District Judge has not considered the scope of the provisions of Order 41 Rule 27 CPC.
4. I have given my thoughtful consideration to the contentions of the learned Counsel for the petitioners. As has already been noticed, the suit of the plaintiff-Bank for which the Bank is stated to have been defrauded has been dismissed by the learned trial court on 16.2.2001. During the pendency of the appeal before the District Judge, the Bank filed an application for amendment of the plaint and for grant of permission to lead additional evidence. The case set up by the Bank is that fraud had been committed by Des Raj Chawla which was detected by the Investigating Authority of the Bank vide inspection report dated 15.4.1991 which was received by the plaintiff-Bank on 27.5.1991. It is stated that due to inadvertence on the part of the counsel for the Bank, the said report could not be proved in the trial court. Besides, in para No. 15 of the plaint, the date of knowledge of detection of fraud to the plaintiff-Bank had been wrongly mentioned as 15.4.1991 instead of 27.5.1991 which, it is stated, had occurred due to a typographical mistake or by oversight. It is further case of the Bank that the relevant record regarding the fraud committed was with the Investigating authorities and the plaintiff-Bank was not in the knowledge of the admission made by deceased Des Raj Chawla on 20.4.1991 where he had confessed his guilt of committing the fraud with the Bank. Therefore, the Bank wants to examine the attesting witnesses of the confessional statement dated 20.4.1991 of Des Raj Chawla. Besides, after the transfer of the suit Vijay Kumar (petitioner No. 1) one of the legal heirs of deceased Des Raj Chawla gave an affidavit in the Bank on 9.5.1997, vide which he undertook to pay the amount outstanding against his father Des Raj Chawla. Accordingly, on 13.8.1998, Vijay Kumar (petitioner No. 1) paid Rs. 58,709.25 and Rs. 1,07432/- in cash to the plaintiff-Bank on account of fraud money outstanding against his father Des Raj Chawla. The plaintiff-Bank also wants to prove the said vouchers regarding the deposit of the aforesaid amounts by Vijay Kumar (petitioner No. 1) which came into existence after the filing of the suit. These evidences, it has been stated are very material for the just decision of the case. The objection of the petitioners to the said application is that the admission of date of knowledge of alleged fraud as 15.4.1991 by the plaintiff-Bank is very material inasmuch as the suit is barred by time as it was filed on 29.4.1994. Therefore, the plaintiff-Bank is not to be allowed to fill up the lacunae and withdraw the admission regarding the date of knowledge about the alleged fraud so as to bring the suit within the period of limitation. In fact even the evidence led by the plaintiff-Bank shows that the alleged fraud came to its knowledge on 29.5.1990 and the plaint and the replication are silent with regard to receipt of the inspection report by the Bank on 27.5.1991. The said objections as raised by the petitioner, in my view, are not of much significance. The learned District Judge has observed that the inspection report dated 15.4.1991 was received in the Bank on 27.5.1991 and due to inadvertence on the part of the counsel for the Bank, the said report could not be proved in the trial court which has been held to be a typographical error or oversight. The proposed amendment has been held to be essential as it would help the Court in deciding the case in a just and proper manner. The Photostat copy of the inspection report was produced before the learned District Judge and it was observed that the same showed that it had been received by the plaintiff-Bank on 27.5.1991 which could not be proved by the plaintiff-Bank in the trial court. The suit has been filed by the plaintiff-Bank on 29.4.1994 and if the date of knowledge is taken as 27.5.1991, the same would be within time. In the matter of the suit being barred by limitation on account of amendment having been allowed, it may be noticed that the Supreme Court in the case of Pankaja and Anr. v. Yellapa (D) by LRs and Ors. observed that there is no absolute rule that in every case where a relief is barred because of limitation an amendment should not be allowed.
5. Discretion in such cases depends on the facts and circumstances of the case. It was held that since the jurisdiction to allow or not to allow an amendment is discretionary, the same would have to be exercised on judicious evaluation of the facts and circumstances in which the amendment is sought. If the granting of an amendment really subserves the ultimate cause of justice and avoids further litigation, the same should be allowed, Besides, it was observed that there can be no strait-jacket formula for allowing or disallowing an amendment of pleadings and each case depends on the factual background of that case. A reference was made in the said decision to an earlier decision of the Hon'ble Supreme Court in L.J. Leach and Co. Limited and Anr. v. Jardine Skainner and Co. wherein it was held that it is no doubt true that Courts would, as a rule, decline to allow amendments, if a fresh suit on the amended claim would be barred by limitation on the date of application. However, that is a factor to be taken into account in exercise of the discretion as to whether amendment should be ordered, and does not affect the power of the Court to order it if that is required in the interest of justice. The District Judge having exercised his jurisdiction and allowed the amendment in the circumstances of the case would not warrant interference of this Court in exercise of its revisional jurisdiction and that would be a matter which the petitioner may if so advised raise before the District Judge. The plea that the relief sought in the case is barred by limitation or not is an arguable point and such a plea if raised by the petitioners could be made a subject matter of the issue but in the circumstances it cannot debar the amendment of the plaint. The objection with regard to the bar of amendment of the plaint in view of the proviso to Order 6 Rule 17 C.P.C. as substituted and inserted by the C.P.C. (Amendment) Act 2002 is without basis. It may appropriately be noticed that Section 16 of the C.P.C. (Amendment) Act 2002 relates to repeal and savings.
6. Section 16(2)(b) thereof reads as under:
16. Repeal and savings- (1) x x x (2) Notwithstanding that the provisions of this Act have come into force or repeal under Sub-section (1) has taken effect, and without prejudice to the generality of the provisions of Section 6 of the General Clauses Act, 1897.-
(a) x x x
(b) the provisions of Rules 5, 15, 17 and 18 of Order VI of the First Schedule as omitted or, as the case may be, inserted or substituted by Section 16 of the Code of Civil Procedure (Amendment) Act, 1999 and by Section 7 of this Act shall not apply to in respect of any pleading filed before the commencement of Section 16 of the Code of Civil Procedure (Amendment) Act, 1999 and Section 7 of this Act;
(c) x x x.
7. A perusal of the above shows that the provisions of Order 6 Rule 17 C.P.C. as omitted or, as the case may be, inserted or substituted by Section 16 of the C.P.C. (Amendment) Act 1999 and by Section 7 of the C.P.C. (Amendment) Act 2002 shall not apply to in respect of any pleading filed before the commencement of Section 16 of the C.P.C. (Amendment) Act, 1999 and Section 7 of the C.P.C. (Amendment) Act, 2002. In terms of Section 16(iii) of the C.P.C. (Amendment) Act 1999, Rules 17 and 18 of Order 6 were to be omitted. However, in terms of Section 7 of the C.P.C. (Amendment) Act 2002, Rules 17 and 18 of Order 6, as they stood before their omission by Clause (iii) of Section 16 of the C.P.C. (Amendment) Act, 1999 were substituted in the manner as indicated therein. The C.P.C. (Amendment) Act, 1999 was brought into force from 1.7.2002 vide notification No. S.O.603(E) dated 6.6.2002 except certain provisions which includes Clause (iii) of Section 16 of the C.P.C. (Amendment) Act, 1999. The provisions of the C.P.C. (Amendment) Act, 2002 were also brought into force from 1.7.2002 in pursuance of the same notification. Therefore, the effective date for the enforcement of the provisions of Order 6 Rule 17 C.P.C. in terms of Section 16(2)(b) of the C.P.C. (Amendment) Act, 2002 is 1.7.2002 and the substituted provisions of Order 6 Rule 17 C.P.C. as inserted in pursuance of Section 7 of the C.P.C. (Amendment) Act, 2002 are inapplicable to pleadings filed before 1.7.2002. In the case in hand the suit, as already noticed, was filed on 29.4.1994 i.e. before 1.7.2002, which is the effective date of the coming into effect of the substituted provisions of Order 6 Rule 17 C.P.C. As such the contention of the learned Counsel that the amendment was not liable to be allowed in view of the proviso to Order 6 Rule 17 C.P.C. is clearly misconceived.
8. The position relating to admission made by Des Raj Chawla on 20.4.1991 in which he confessed his guilt of committing fraud with the plaintiff-Bank is to be proved by examining Shri S.S. Lalla, Branch Manager of the Bank.
9. Besides, the deposit of some of the amount due from the defendants i.e. amount of Rs. 58709.25 and Rs. 1,07,432/- as also the affidavit dated 9.7.1997 of Vijay Kumar (petitioner No. 1) are to be proved. The present is a case where the plaintiff-Bank has alleged the commission of fraud. The additional evidence sought to be produced is, therefore, liable to be allowed to be proved by the plaintiff-Bank. The evidence in respect of the amount of which the Bank is stated to have been defrauded is liable to be allowed to be led. In case the additional evidence is not allowed to be led it would result in serious prejudice to the Bank. The learned District Judge has found the documents to be produced as additional evidence as necessary and essential for the just decision of the case. Besides, the prayer for additional evidence it was observed cannot be declined merely because of negligence in not producing the same earlier. It was observed that the additional evidence would certainly enable the Court to pronounce the judgment. Besides, the petitioner would be afforded opportunity to rebut the evidence to be produced by the plaintiff-petitioner by way of additional evidence. Although generally an admission made in the written statement is not to be withdrawn however, the present is a case where necessary pleadings could not be carried out due to typographical mistake or oversight which has resulted in serious prejudice. Even otherwise as is well known an admission is only a piece of evidence and the weight to be attached to it is dependent on the circumstances in which it was made.
10. Besides, it is not conclusive of the matter stated therein. It can be shown to be erroneous or untrue. Therefore, the presumption of admission sought to be raised by the learned Counsel for the petitioner is to be seen on touchstone of the said principle and that too during the hearing of the case by the learned District Judge.
11. Besides, the learned District Judge ha$ observed that the documents sought to be produced are necessary for the just decision of the case. Therefore, the requirements of Order 41 Rule 27 C.P.C. are complied with and the impugned order calls for no interference in exercise of the revisional jurisdiction of this Court under Article 227 of the Constitution of India.
12. For the foregoing reasons, there is no merit in this petition and the same is accordingly dismissed.