Himachal Pradesh High Court
The Kangra Central Cooperative Bank vs Prabha Devi & Others on 29 May, 2017
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH,
SHIMLA
CMPMO No.346 of 2016
Date of Decision: 29th May, 2017
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The Kangra Central Cooperative Bank ..... Petitioner.
Versus
Prabha Devi & others. .... Respondents.
Coram:
The Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting?1 Yes.
For the Petitioner : Mr. Umesh Kanwar, Advocate.
For the Respondents : Mr. Karan Singh Kanwar, Advocate.
Sandeep Sharma, Judge (oral)
Petitioner, being aggrieved and dissatisfied with the order(Annexure P-3), dated 4th May, 2016, passed by learned Civil Judge (Junior Division) Anni, District Kullu, H.P., in Case No. 29-I of 2012, whereby application under Order 6 Rule 17 CPC having been filed by the petitioner (hereinafter referred to as the plaintiff) for amendment of plaint has been dismissed, has approached this Court seeking therein following reliefs:-
" That this petition may kindly be allowed and the impugned order dated 4.5.2016 (Annexure P-3) passed by learned Civil Judge(Jr. Division), Anni, District Kullu, H.P. in CS No.29-I of 2012 titled as The Kangra Central Coop. Bank Ltd. Vs. Smt. Prabha Devi & others may be quashed and set- aside, and amended plaint be directed to be brought on record for all intents and purposes, in interest of justice."
Whether reporters of the local papers may be allowed to see the judgment?
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2. Briefly stated facts, as emerged from the record are that plaintiff i.e. Kangra Central Cooperative Bank, filed civil suit .
in the Court of learned Civil Judge (Jr. Division) Anni, District Kullu, H.P., against the respondents (hereinafter referred to as the defendants) for recovery of loan. Defendants, pursuant to the notices issued to them, filed written statement specifically raising therein objections with regard to loan, if any, taken by them, as alleged in the plaint having been filed by the plaintiff.
During the pendency of suit, plaintiff by way of application filed under Order 6 Rule 17 CPC sought amendment of the plaint. It would be profitable to reproduce averments contained in the application herein:-
1. That the plaintiff has filed a suit for the recovery of loan against the defendants before the Hon'ble Court.
2. That the defendants have filed a written statement on dated 17.6.2014 and no specific objections were raised pertaining to kind of loan taken. The defendants have pleaded denial of contents of a plaint for want of knowledge which correspond to admission of the contents of paras of plain.
3. That the plaintiff discovered during the plaintiff's evidence an clerical error pertaining to kind of loan in para 2 to 5 &7.
4. That the plaintiff has filed documents pertaining to vehicle loan alongwith the plaint.
But due to clerical error the word agriculture ::: Downloaded on - 02/06/2017 00:00:27 :::HCHP ...3...
instead of vehicle has been incorporated in para 2 to 5 & 7.
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5. That the defendants have not pressed for the addition of new issue with regard to kind of loan advanced to defendant No.1 and now the suit is fixed for DWS on 9.12.2014.
6. That the plaintiff inspite of due diligence, could not discover clerical error herein before.
7. That the required amendment/correction neither changes the nature of suit nor changes the real controversy between the parties in a suit.
8. r That the amendment/correction will not do injustice to the adversary and it is necessary for proper adjudication of the dispute between the parties;
9. That the plaint required to be amended/corrected para-wise as under:
Para-2:- That the defendant No.1 approached the plaintiff at its branch at Duraha for the grant of motor vehicle/personal loan and cash credit facility to the extent of Rs.4,24,000/-.
3. That on the request of the defendant No.1 the plaintiff advanced Rs.4, 24,000/- as vehicle loan against agreement dated 5.10.2007.
4. That after the availment of vehicle loan and demand cash credit facility against the guarantee of defendants No.2 & 3, the ::: Downloaded on - 02/06/2017 00:00:27 :::HCHP ...4...
defendants made they jointly and severally liable for the amount advanced together with interest to the plaintiff bank.
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5. That as per the terms and conditions of the vehicle loan the defendants agreed and made themselves liable to pay the interest @ 11.75% plus 2% from the date of advancement/availment of cash credit limit till the realization of the amount to the plaintiff bank.
6. That the defendant No.1 did not adhere to the repayment schedule of the vehicle loan agreement and cash credit facility as per r terms and conditions of the documents. The defendant No.1 was negligent in payment of the installments and deposit of cash credit limit from the very beginning. Since the defendants defaulted in the payment of outstanding dues to the plaintiff bank as official notices. The defendants were also requested personally by the bank officers but of no avail. A legal notice was also issued to the defendants.
It is, therefore, prayed for the permission to amend/correct the plaint. Amended plaint is enclosed."
3. Learned trial Court vide order dated 4.5.2016, dismissed the aforesaid application on the ground that application has been filed after the commencement of trial and there is no sufficient pleadings, which could persuade the court below to allow the amendment, as sought for.
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4. Mr. Umesh Kanwar, learned counsel representing the petitioner, while inviting attention of this Court to application .
(Annexure P-1), vehemently contended that only word 'vehicle' instead of 'agriculture' is/was sought to be incorporated by way of amendment and no prejudice, if any, would have caused to the defendants in case the amendments, as prayed for, was allowed by the court below. Mr. Kanwar, further contended that in case original plaint having been filed by the plaintiff is perused, it clearly emerge from the same that suit for recovery was filed qua the loan amount which was advanced for purchase of vehicle not for agriculture, but inadvertently word 'agriculture' was typed in the plaint. Mr. Kanwar, further contended that perusal of documents annexed with the plaint also suggest that case was for recovery of vehicle loan and not for agriculture loan.
5. Mr. Karan Singh Kanwar, learned counsel representing the respondents, while opposing the aforesaid prayer having been made by the learned counsel for the petitioner, contended that there is no illegality and infirmity in the impugned order, dated 4.5.2016(Annexure P-3), passed by the learned trail court because application (Annexure P-1) was filed after commencement of the trial. Mr. Kanwar, further contended that there was no due diligence on the part of the plaintiff to move an application and it is only after cross-
examination of Official witnesses of the bank, aforesaid factum ::: Downloaded on - 02/06/2017 00:00:27 :::HCHP ...6...
with regard to loan advanced to the defendants for purchase of vehicle came to the notice of the plaintiff-bank. Mr. Kanwar, .
further contended that evidence of plaintiff is already over and no fruitful purpose would be served in case amendment, as prayed for, is allowed at this stage. Mr. Kanwar, further contended that application for amendment is /was only filed to fill up lacuna in the case
6. I have heard learned counsel for the parties and have carefully gone through the record.
7. It is undisputed that application for amendment under Order 6 Rule 17 CPC was filed after commencement of the trial and that too after evidence of plaintiff. But, careful perusal of the averments contained in the application for amendment clearly suggest that plaintiff only intended to incorporate word 'vehicle' instead of 'agriculture' because loan, if any, was advanced to the defendants for the purchase of vehicle not for carrying out agricultural pursuits. It also emerge from the perusal of the record that plaintiff though in the plaint mentioned word 'agriculture', but placed on record the documents of vehicle loan. Similarly, PW-1 and PW-2 in their examination-in-chief have categorically stated that the loan was advanced to the defendants for the purchase of vehicle. Factum with regard to error in plaint only came to the notice of the plaintiff-bank when bank officials were cross-examined by the ::: Downloaded on - 02/06/2017 00:00:27 :::HCHP ...7...
defendants and as such, they moved the application at that stage only.
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8. True, it is that there is no specific averment in the application that plaintiff despite due diligence failed to move an application at appropriate stage, but since there is only clerical mistake, court below ought not to have taken hyper technical view while dismissing the application for amendment filed by the plaintiff. Rather, after affording due opportunities to the parties, application should have been allowed and by now suit would have been decided.
9. The Hon'ble Apex Court in Baldev Singh and others versus Manohar Singh and another (2006) 6 Supreme Court Cases 498 has specifically held that courts should be extremely liberal in granting the prayer for amendment of pleadings unless serious injustice or irreparable loss is caused to the other side. It would be appropriate to reproduce para Nos.
7,8 and 9 of the judgments herein:-
"7. Before we take up this question for our decision, we must consider some of the principles that govern allowing an amendment of the pleadings.
8. It is well settled by various decisions of this Court as well as the High Courts in India that courts should be extremely liberal in granting the prayer for amendment of pleadings unless serious injustice or irreparable loss is caused to the other side. In this connection, reference can be made to a decision of the Privy Council in Ma Shwe ::: Downloaded on - 02/06/2017 00:00:27 :::HCHP ...8...
Mya vs. Maung Mo Hnaung (AIR 1922 PC 249) in which the Privy Council observed (IA pp.216-17) .
"All rules of court are nothing but provisions intended to secure the proper administration of justice, and it is therefore, essential that they should be made to serve and be subordinate to that purpose, so that full powers of amendment must be enjoyed and should always be liberally exercised, but nonetheless no power has yet been given to enable one distinct cause of action to be substituted for another, nor to change, by means of amendment, the subject matter of the suit"
(emphasis supplied)
9. Keeping this principle in mind, let us now consider the provisions relating to amendment of pleadings. Order 6 Rule 17 of the Code of Civil Procedure deals with amendment of pleadings which provides that the Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties. From a bare perusal of this provision, it is pellucid that Order 6 Rule 17 of the Code of Civil Procedure consists of two parts. The first part is that the court may at any stage of the proceedings allow either party to amend his pleadings and the second part is that such amendment shall be made for the purpose of determining the real controversies raised between the parties. Therefore, in view of the provisions made under Order 6 Rule 17 CPC it cannot be doubted that wide power and unfettered discretion has been conferred on the court to allow amendment of the pleadings to a party in such manner and on such terms as it appears to the court just and proper. While dealing with the prayer for amendment, it would also be necessary to keep in mind that the Court ::: Downloaded on - 02/06/2017 00:00:27 :::HCHP ...9...
shall allow amendment of pleadings if it finds that delay in disposal of suit can be avoided and that the suit can be disposed of expeditiously. By the Code of Civil Procedure .
(Amendment )Act, 2002 a proviso has been added to order 6 Rule 17 which restricts the courts from permitting an amendment to be allowed in the pleadings of either of the parties, if at the time of filing an application for amendment, the trial has already commenced. However, the court may allow amendment if it is satisfied that in spite of due diligence, the party could not have raised the matter before the commencement of trial. So, far as proviso to Order 6 Rule 17 of the Code of Civil Procedure ris concerned, we shall deal with it later."
10. The Hon'ble Apex Court in Surender Kumar Sharma versus Makhan Singh (2009) 10 Supreme Court Cases 626 has held as under:-
"5. As noted hereinearlier, the prayer for amendment was refused by the High Court on two grounds. So far as the first ground is concerned i.e. the prayer for amendment was a belated one, we are of the view that even if it was belated, then also, the question that needs to be decided is to see whether by allowing the amendment, the real controversy between the parties may be resolved. It is well settled that under Order 6 Rule 17 of the Code of Civil Procedure, wide powers and unfettered discretion have been conferred on the court to allow amendment of the pleadings to a party in such a manner and on such terms as it appears to the court just and proper. Even if, such an application for amendment of the plaint was filed belatedly, such belated amendment cannot be refused if it is fond that for deciding the real controversy between the parties, it can be allowed on payment of costs. Therefore, in our view, mere delay and ::: Downloaded on - 02/06/2017 00:00:27 :::HCHP ...10...
laches in making the application for amendment cannot be a ground to refuse the amendment.
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6. It is also well settled that even if the amendment prayed for is belated, while considering such belated amendment, the court must bear in favour of doing full and complete justice in the case where the party against whom the amendment is to be allowed, can be compensated by costs or otherwise.( See. B.K. Narayana Pillai v. Parameswarn Pillai (2000) 1 SCC 712). Accordingly, we do not find any reason to hold that only because there was some delay in filing the application for amendment of the plaint, such prayer for amendment cannot be allowed."
11. After having gone through the aforesaid judgments passed by the Hon'ble Apex Court, it clearly emerge that prayer for amendment, if any, is made at belated stage, needs to be accepted and amendment cannot be refused on the ground of delay, if it is found that for deciding real controversy between the parties , amendment can be made.
12. In the case at hand, it clearly emerge from the record that plaintiff intended to recover loan amount allegedly advanced to the defendants for purchase of vehicle not for agriculture pursuit and as such, court below ought to have granted amendment, as prayed for, because admittedly it would have helped it to decide the controversy for all times to come. In case the aforesaid amendment, as prayed for, is not allowed, natural consequences would be dismissal of the suit having been filed by ::: Downloaded on - 02/06/2017 00:00:27 :::HCHP ...11...
the plaintiff bank and bank shall be constrained to file fresh suit for recovery of amount allegedly advanced to the defendants for .
purchase of vehicle. But, in case amendment, as prayed for, is allowed, parties to the lis can be saved from another round of litigation. At this stage, Mr. Umesh Kanwar, learned counsel representing the petitioner fairly stated that if amendment, as prayed for, in the application is allowed, no further evidence would be led by the plaintiff bank to prove documents already stands filed with the plaint.
13. Consequently, in view of the detailed discussion made hereinabove as well as law laid down by the Hon'ble Apex Court, the present petition is allowed and impugned order dated 4.5.2016(Annexure P-3) is quashed and set-aside. However, the petitioner shall pay an amount of Rs. 2500/- to the defendants on account of litigation charges within a period of two weeks from today. The parties through their respective counsel are directed to appear before the learned trial Court on 19.6.2017.
The petition is disposed of along with pending applications, if any.
Copy dasti.
(Sandeep Sharma)
29th May, 2017 Judge
(shankar)
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