UCO Bank, Chetpet Branch vs Nest Tours and Travels P. Ltd.

S. Palanivelu, J.—The petitioner is plaintiff in O.S. No. 714 of 2008 pending on the file of VII Additional City Civil Court, Chennai for a

decree for Rs. 7,23,330.63 together with interest at 14% per annum and for cost. The defendants resisted the suit by filing written statement and

the suit came up for trial and the witnesses were examined.

The plaintiff filed petition under Order VI Rule 17 to incorporate an amendment into the plaint as regards date. In the affidavit he has stated that

in 8th paragraph of the plaint it is stated that ""another adjustment on Rs. 3,36,000/- on 05-04-2007"", however, it is a wrong pleading and instead

of that the date may be amended as 05.04.2006. Likewise in paragraph 10 of the plaint also the same amendment is sought to be made. It is

however stated that the mistakes are not wilful nor wanton but due clerical error in the statement of accounts and by oversight and that the point of

jurisdiction, limitation will not get altered by allowing the amendment application. In the written statement the defendant has clearly admitted that

there was a payment of Rs. 3,35,000/- payable by the Manager of the Chetput branch Mr.Subramanian for some ticketing that was done for him

from August 2004. This amount he had cleared only in April 2006 and hence the amendment will not cause any prejudice to the defendants.

The above said pleadings were resisted in the counter filed by the respondent/defendants by stating that the operation of the loan account was

stopped in December 2004 itself and thereafter there had been no transaction at all. He never authorised any person to pay on his behalf towards

loan account and the entry of the said amount is stoutly denied in the written statement and misconception of the said statement, the plaintiff

wrongly assumed that the second defendant has authorised the manager to pay the amount. Further during the cross examination, the Senior

Manager of the plaintiff''s bank has also stated that Rs. 3,35,000/- was made through a cheque and he has not mentioned about any details in this

regard. Only to patch up the latches made by the plaintiff he has come forward with the amendment application. The proposed amendment would

totally alter the nature of the case. There is no bona fide in the petition which is nothing but sheer of the process of the court and hence the petition

has to be dismissed.

After hearing both sides, learned VII Additional Judge, City Civil Court, Chennai, dismissed the application by observing that the petition is filed

in a belated stage and also it is to circumvent the evidence of P.W.1, that it would alter the dimension of the suit definitely and hence the petitioner

is not entitled for the relief.

Mr.S. Ramasundaram, learned Counsel for the petitioner would submit that inasmuch as the second respondent himself written a letter to the

bank on 17.12.2007 by his own hand writing acknowledging the arrears of loan and also executed a revival letter on the even date acknowledging

the outstanding as on that date, it is desernible that the wrong mentioning of the date as 05.04.2007 instead of 05.04.2006 is an oversight and by

means of which no prejudice would be caused to the respondent.

Arguing on the other side of the coin, Mr.K. Venkateswaran, learned Counsel for the respondents 1 to 4 would strenuously contend that only to

suit the convenience of the plaintiff''s bank, it has come forward with this amendment application; that there is no bona fide in the application, that

definitely it has been pleaded and put to P.W.1 in the cross examination that there was no transaction after December 2004. Even without notice

to the defendants the bank adjusted the deposit of Rs. 40 lakhs made by the defendants in the loan and that the then Branch Manager played a

fraud on the defendants and that the plaintiff has miserably failed to show who has made the payment of Rs. 3.36 lakhs. In a nut shell, it is his

contention that besides there is no bona fides in the amendment application, the request for the amendment has to be rejected in view of the

proviso to Order VI Rule 17 of C.P.C.

In order to have a thorough glimpse of the matter the ingredients and statutory requirement in proviso to Order VI Rule 17 has to be looked

into:

Amendment of Pleadings:- 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 deciding the real question in

controversy between the parties.

Provided that no application for amendment shall be allowed after the trial has commenced, unless the court comes to the conclusion that in spite

diligence the party could not have raised the matter before the commencement of trial.

For incorporation of the amendment in the plaint after commencement of trial, it is incumbent upon the plaintiff to satisfy the conscience of the

Court that inspite of due diligence he could not make the amendment application anterior to the commencement of the trial and it is for the court to

record its satisfaction as to the fact that the plaintiff was unable to bring about the amedment into his pleadings inspite of his diligence. Adverting to

the facts of the case, it is the version of the plaintiff that by means of Ex.A-4, a letter written the second defendant in his own hand writing dated

17.12.2007, he categorically conceded that "" Had I known that an amount of almost Rs. 5.55 lakhs has been pending for almost two years, I

would have taken steps to clear them but unfortunately, I was not aware for this. However, I am willing to do a one time settlement."" On the same

date he has also executed a revival letter in favour of the plaintiff''s bank as to the outstanding of Rs. 5,55,187.60, which is marked as Ex.A-5.

These documents have been produced to show that even if the date is amended as per the request of the petitioner, the shape of the suit nor the

cause of action would not get altered and that there is no scope of change of nature or character of the suit, or also the limitation.

Learned Counsel for the petitioner also draws attention of this Court to a challan prepared and maintained by the plaintiff bank which shows that

on 4.4.2006 a sum of Rs. 3,36,000/- was received by the bank and the same was credited into the loan account on 5.4.2006. In the said challan it

is stated ""by means of cheque No. 307769 drawn on Bank of Maharastra, Chennai from Nest Tours and Travels"". Learned Counsel for the

respondent would dispute it by stating that the above said aspect as regards the date viz., 4.4.2006 has never been pleaded or deposed on behalf

of the plaintiff and that P.W.1 also failed to explain the receipt of amount by the Bank in his cross examination. He reads a portion of the cross

examination of P.W.1 who is Senior Manager of the Bank, in which he has stated that they have got documents to show by whom the amount was

paid and it is false to suggest that the cheque as alleged by the plaintiff was not delivered by the defendants. He also refers to the statement of

accounts which also shows that on 5.4.2006 the amount was received.

It is the specific contention of the learned Counsel for the respondent that the plaintiff has not shown that on whose instance the amount got

credited into the bank in the loan account. It is also stated on behalf of the petitioner that in the written statement the defendants have categorically

admitted that there was a payment of Rs. 3,36,000/- on behalf of the defendants payable by the Manager of the Chetput branch Mr. Subramaniam

for some ticketing that was done for him from August 2004, this amount he had cleared only in April 2006, so any interest on this amount should

be deducted from TOD that apparantly has not been cleared and that the defendant states that the plaintiff has adjusted this amount only on

5.4.2007, but the defendant did not pay any amount on 5.4.2007. As far as the portion of the above said pleadings is concerned, it is for the trial

court to discuss it in the light of the oral and documentary evidence available on record at the conclusion of the trial. However, there is a pleading

that there was a payment of 3,35,000/- on behalf of the defendant though it was later denied by the defendant in their written statement.

It is contention of the petitioner that the pleadings at the first instance in the plaint as to the date, is a clerical error and by oversight and it may

be rectified by amending it and that it will not alter the nature of the suit. As far as the statutory satisfaction to be obtained by the Court by allowing

the amendment application which can be filed after the commencement of trial is concerned, sufficient circumstances are available in its

proceedings, in view of this Court.

Learned Counsel for the petitioner would garner support from a decision of this Court in Church of South India Trust Association,

Tiruchirapalli-Thanjavur Diocesan Council and Rev. Chinnaparaj, President, Dharapuram Diocese Vs. Kovil Pillai and Others, wherein the learned

Judge after referring and following various earlier decisions of this Court, formulated certain principles to be observed before allowing the

amendment applications. They are as follows:

A perusal of the judgments cited by the learned Counsel for the petitioners would bring out the following principles that are governing the

Application filed under Order 6 Rule 17 C.P.C.:

Amendment to the pleadings cannot be turned down by Courts merely on the score that they introduce an inconsistent plea or a new cause of

action.

The true test is whether the amendment is foreign to the subject matter of the suit and if not whether it would be in the interest of justice to grant

it.

Amendment may be allowed irrespective of law of limitation, if the cause of action is not going to be changed and in the interest of justice.

since the amendment of the plaint is being the discretion of the Court, it need not be refused on technical grounds.

Alternative relief sought by way of amendment can be allowed even if belated, but the other side should be compensated with costs.

Allowing of this Application is a rule and rejection is an exception.

Pre-trial amendment are to be allowed more liberally than those which are sought to be made after the commencement of trial or after the

conclusion thereof.

if it is permissible for the plaintiff to file an independent suit, there is no difficulty in accepting his Application for amendment of plaint.

Learned Counsel for the respondent placed much reliance upon a decision of the Supreme Court in Usha Balashaheb Swami and Others Vs.

Kiran Appaso Swami and Others, wherein Their Lordships have formulated the following dictums to be followed while allowing the applications

for amendments or pleadings in the plaints and written statements:

It is equally well settled principle that a prayer for amendment of the plaint and a prayer for amendment of the written statement stand on different

footings. The general principle that amendment of pleadings cannot be allowed so as to alter materially or substitute cause of action or the nature of

claim applies to amendments to plaint. It has no counterpart in the principles relating to amendment of the written statement. Therefore, addition of

a new ground of defence or substituting or altering a defence or taking inconsistent pleas in the written statement would not be objectionable while

adding, altering or substituting a new cause of action in the plaint may be objectionable.

Learned Counsel for the respondents also cited a decision of this Court in 2004 (2) CTC 742 P. Subba Naicker v. Veluchamy Naicker and

three others in which it is held that after the Amendment Act, 2002 (which came into force with effect from 1.7.2002), the court is burdened with

the responsibilities of extraordinary circumstances available while the amendment is coming up after the commencement of trial. It is held therein

that it is to be noted that after the Amendment Act 2002, no application for amendment shall be allowed after the trial has commenced unless the

Court comes to the conclusion that in spite of the due diligence, the party could not have raised the matter before the commencement of trial.

As far as the ratio laid down by the Supreme Court is concerned, adding, altering or substituting a new cause of action in the plaint may be

objectionable. But in the case on hand, there is no question of adding, altering or substituting a new cause of action but to amend a date alone

which does not have the effect of adding, altering or substituting new cause of action in the plaint. In short, it may be stated that even though the

amendment is introduced into the plaint, it would not alter the nature and character of the suit and also the point of limitation will not get affected as

adverted to supra. It is further observed that the respondents have got every opportunity to agitate all these matters before the trial court and there

is no impediment for them to putforth their claim. It is no doubt that the challan dated 4.4.2006 was not produced before the trial court at the time

of trial or any time. However, it is for the plaintiff to produce it before the trial court and the court below may entertain it after hearing both the

parties. In such view of the matter, I am of the considered opinion that as the plaintiff has fulfilled the statutory requirements as contemplated in the

provision of Order 6, Rule 17 of C.P.C., he need not be non-suited for the relief prayed for, for the reason that the clerical error and oversight it

might have occurred.

In the light of what arer stated above, the order challenged before this Court has to be set aside and it is accordingly set aside. The Civil

Revision Petition deserves to be allowed.

In fine the Civil Revision Petition is allowed by setting aside the order of the learned VII Additional Judge, City Civil Court, Chennai in I.A.

No. 20161 of 2008 in O.S. No. 714 of 2008 dated 25.11.2008. No costs. Connected M.P. is closed. It is made clear that the trial Court will not

get influenced by any of the observations made in this Order.