Bhinder Steel Industries and Others vs Smt. Sainder Kaur and Others

Mahesh Grover, J.—This revision petition is directed against order dated 17.2.2009 whereby the amendment sought by the Petitioner to his

written statement has been declined.

Learned Counsel for the Petitioner stated that the amendment which has been sought, is essential to the facts of the case and denial thereof is

contrary to the law laid down by Supreme Court and various High Courts that the law of amendment of pleadings has to be construed liberally and

that amendment to the written statement is on different pedestal than that of the amendment in the plaint. He placed reliance on Rajesh Kumar

Aggarwal and Ors. v. K.K. Modi and Ors. 2006(2) R.C.R. 577 (S.C.); Baldev Singh and Ors. v. Manohar Singh and Anr. etc. 2006(3) CCC

573 (S.C.) ; State Bank of Hyderabad v. Town Municipal Council 2007(1) R.C.R. 415 (S.C.); Surender Kumar Sharma v. Makhan Singh

2010(1) P.L.R. 231 (S.C.); and Smt. Kala Wati v. Ram Piari and Ors. 2005(3) CCC 9 (P&H).

On the other hand, learned Counsel for Respondent No. 1 laid much emphasis on the facts of the case. He stated that Respondent No. 1 herein

stood as guarantor to the loan arrangement between Syndicate Bank and the present Petitioners. While doing so, she had mortgaged her

residential house. Petitioner Nos. 1 and 2, who are loanees, defaulted in repaying the loan amount, which resulted in the filing of a suit by the bank

against the Petitioners, as also Respondent No. 1, who was guarantor. The loanees, who were arrayed as Defendants in the said suit, defaulted in

appearance and they were proceeded against ex parte, thus, paving the way for a decree to be born against Respondent No. 1 as well. The bank

then started proceedings to recover the amount from Respondent No. 1 by way of execution and her property was threatened to be sold in those

proceedings. Respondent No. 1 thereafter repaid the entire decretal amount in order to salvage her property from the bank. The instant suit has

been filed by Respondent No. 1 to recover the amount from the present Petitioners as they were loanees and for the reason that she had satisfied

the loan amount by repaying the same to the bank.

The Petitioners filed their written statement on 6.5.1997. Therein, while replying to the averments made in the plaint, especially in paragraph No.

1 wherein it was alleged by the Plaintiff-Respondent No. 1 that Bhinder Steel Industries was a partnership firm, it was stated that it was a matter of

record. By way of the instant application, the Petitioners have sought to incorporate the pleas which have been noticed in the impugned order. If

the amendment which is sought by the Petitioners is to be seen, then the same have no relevance with the factors pleaded by them. The suit filed by

Respondent No. 1 is a suit for recovery simpliciter and the fact that the instant application has been moved belatedly which is also a fact which has

rightly been appreciated by the trial Court, for the reason that these facts were known to the Petitioners at the filing of the written statement in the

year 1997 and this fact cannot be wished away by merely saying that the amendment can be sought at any point of time. The Court necessarily has

to see with reference to the facts of the case as to whether the amendment which has been sought is a ploy to delay the proceedings or is

necessary for proper adjudication of the matter. The existence of a partnership deed, or the firm being a proprietorship firm, was a crucial fact

which could not have evaded the notice of the Petitioners at the time when they filed written statement. Thus, it can safely be concluded that the

exercise to amend the written statement is ostensibly a mechanism to defeat the process of law by generating delay to the advantage of the

Petitioners, more-so when they are facing recovery proceedings.

I do not, thus, find any ground to interfere.

Dismissed.