Delhi District Court
Union Bank Of India vs M. Ghildiyal on 25 April, 2012
IN THE COURT OF SH. S.K.MALHOTRA, SENIOR CIVIL
JUDGE CUM RENT CONTROLLER (NORTH) DELHI.
Suit No. 236/09/85.
Union Bank of India .........Plaintiff
Vs.
M. Ghildiyal ........Defendant
Date of Order:- 25.04.2012
ORDER
1. By way of present order, I shall dispose of an application as filed on behalf of defendant no. 1 dated 07.01.2012 for amendment in the Written statement u/o 6 rule 17 r/w Section 151 CPC alongwith another application u/s 151 & 153 CPC dated 29.03.2012 as filed by defendant no. 1 for amendment in the para no. 24 of the proposed application for amendment in the WS i.e. aforesaid first application.
2. In brief, the facts necessary for disposal of these applications are, that the applicant/defendant no. 1 claimed that after filing of the WS by defendant no. 1, subsequent event has come in the knowledge of defendant no.1 from the plaintiff reply of preliminary objections in the replication that the loan granted to the defendant no. 1 was insured with DICGC.
3. It is stated that the plaintiff has already received 75% of the loan amount, calculated as Rs. 78,000/- approx. from the claimed suit amount in question i.e. Rs. 1,03,807.78 from insurer/guarantor in the year 1982, and the said amount of Rs. 78,000/- approx. is still pending with the plaintiff bank which has not been refunded to DICGC from September 1982 to 31.12.2011. It is stated that the said amount of Rs. 78,000/- has been reinvested by the plaintiff to the commercial borrower @ 24% minimum and interest amount Suit No. 236/09/85 page 1 of page 4 generated/calculated is amounting to Rs. 5,24,160/- and the plaintiff bank has not returned this amount to DICGC till today, therefore, plaintiff has no right to recover the said amount twice from defendant no. 1 fraudulently.
4. It is further submitted by applicant that subsequent event came in the knowledge of defendant no. 1 in response to RTI application and the plaintiff has withdrawn various charges without consent and signatures of defendant no. 1 from account no. 14006 amounting to Rs. 46,000/- approx. under the headings CGS, interest, transfer, commission, return charges etc. It is further claimed that the alleged loan in question sanctioned by plaintiff to defendant has been covered under Govt. Priority and neglected Sector Scheme and no penal interest can be charged up to loan Rs. 25,000/- from defendant no. 1. It is submitted that the plaintiff wants to amend the WS as the aforesaid facts were not known to the defendant no. 1 at the time of filing written statement.
5. It is submitted that the aforesaid fact are very much necessary for defendant no. 1 to amend the WS and same will not change the nature of the suit and these amendments are necessary for just and proper decision of the case.
6. In another application for amendment of application for amendment in the WS dated 29.03.2012, it is submitted that due to error/mistake in computer typing Para no. 24 could not be saved and the fact that plaintiff has admitted deposit of Rs. 30,000/- could not be mentioned. The subsequent details in Para no. 4,9,10, 11 and 13 could not be typed in Para no. 24, therefore, it is prayed that the application be allowed.
7. Plaintiff did not file any reply to these applications while submitting that these applications are frivilous, which have been filed only to delay the suit of the plaintiff.
Suit No. 236/09/85 page 2 of page 4
8. I have heard Ld. counsel for the parties and perused the record.
9. Although the applicant/defendant no. 1 has given without any reason detail of each and every order passed in the main suit and the only relevant fact which came for consideration is that defendant no. 1, from reply to his application under RTI Act, came to know that the loan granted by plaintiff bank to defendant no. 1 was insured by DICGC and the plaintiff bank has already received the 75% of the loan amount Rs. 78,000/- and thus the plaintiff claimed that the amount received from DICGC has been reinvested to the commercial borrower @ 24% minimum and interest amount generated/calculated is amounting to Rs. 5,24,160/- and the plaintiff bank has not returned this amount to DICGC till today, therefore, plaintiff has no right to recover the said amount twice from defendant no. 1.
10. It is further case of the applicant that he wants to set off the suit amount from the amount received by plaintiff through DICGC and these facts came to notice in response to RTI application.
11. Law in respect of amendment is well settled. In an authority reported as Nisha Somania Vs. Outlook Publishing (India) Ltd. & Ors. Reported as 149 (2008) Delhi Law times 734, it was held as under and I quote:-
''10................The general rule is that pre-trial amendments are allowed more liberally than those which are sought to be made after the commencement of the trial or after conclusion thereof since in the former case, it can be assumed that the defendant would not be prejudiced as he would have the complete opportunity to counter the stand of the plaintiff/applicant post amendment. In cases where amendment is sought at a post-trial stage however, the question of prejudice to the opposite party may Suit No. 236/09/85 page 3 of page 4 arise and that shall have to be answered by; reference to the facts and circumstances of each individual case."
12. Adverting back to the facts of the present case, the proposed amendment as mentioned by the applicant/defendant no. 1 to the effect that plaintiff bank has received a sum of Rs. 78,000/- from DICGC and the plaintiff bank is not entitled to recover the suit amount or to charge penal interest from the defendant no. 1 as the loan is covered under Govt. Priority and neglected Sector Scheme, will not cause any prejudice to the plaintiff bank as trial has yet to begun, therefore, application of defendant no. 1 for amendment in the written statement only on the points as referred above and in respect of claiming set off stands allowed.
Announced in open court ( S.K.MALHOTRA ) on 25.04.2012. SCJ/RC/(North)/DELHI Suit No. 236/09/85 page 4 of page 4