THE HIGH COURT OF JHARKHAND AT RANCHI L.P.A. No. 120 of 2014 Central Bank of India having its branch at main road P.O. And P.S. Bistupur, town Jamshedpur, District Singhbhum (East) through its Chief Manager Sri Chandramoni Samal, Son of Late Kalandi Samal, Resident of Bhagwati Enclave, A26/1 Adityapur, P.O. And P.S. Adityapur, town Jamshedpur District Saraikella Kharsawan Jharkhand ............ Appellant Vs. 1. M/s Gyan Press Metal Private Limited, Press and Engineering Division (Unit 1 and II) having its unit at 1819 Tata Nagar Mills and Godown Area, Burma Mines, Jamshedpur through one of its Directors Sri Jjitendra Pal Singh, Son of Sri Jaspal Singh, Resident of 775, New Sitaramdera, P.O. Agrico and P.S. Sitaramdera, Town Jamshedpur, Dist Singhbhum (East ) (Jharkhand) Petitioner/Respondent No.1 2. Authorized Officer, Central Bank of India, Regional Office, Lalpur Chowk P.O. And P.S. Lalpur town and District Ranchi. 3. The Zonal Manager Central Bank of India, having his office at 2 nd floor, Block B, Mourya Lok Complex, Dak Bunglow Road Patna1 (Bihar) 4. The Regional Manager, Central Bank of India having its, Regiional office at Jatin Chandra Road, Bardhman Compound, Lalpur, P.O. And P.S. Lalpur, District Ranchi. Respondent No. 1,2,3/Proforma Respondent Nos. 2,3,4 CORAM: HON'BLE MR. JUSTICE D.N.PATEL : HON'BLE MR. JUSTICE RATNAKER BHENGRA ---------- For the appellant :Ms. A.R.Choudhary,Adv. For the respondents :Mr. Rajiv Ranjan, Adv ---------- 09/Dated:
6. May, 2015 th Per D.N. Patel, J.
1. This Letters Patent Appeal has been preferred by the appellant challenging the order dated 15 th January, 2014 passed by the learned Single Judge in an Interlocutory Application No. 9008 of 2013, preferred by the original petitioner in Writ Petition bearing W.P.(C)No. 6962 of 2013.
2. Having heard learned counsel for both sides and looking to the facts and circumstances of the case it appears that the original writ petitioner-Respondent No.1 had taken Cash Credit as well as Term Loan from this appellant and ultimately, he had not paid Rs. 585 lacs approximately for which notice was issued under Sub- Section (2) of Section 13 of the Securitisation and Reconstruction of Financial Assets and Enforcement of 2 Security Interest Act, 2002 (hereinafter referred to as SARFAESI Act,2002 for the sake of brevity). Thereafter, objections were filed by the respondent no.1 and ultimately an order dated 15th October,2013 was passed by this appellant under Section 13(3)(A) of SARFAESI Act,2002, by which the request for restructuring the loan of respondent no-1 was declared as non-performing assets. Thereafter, possession notice dated 17th October, 2013 was also issued by this appellant under Sub-Section (4) of Section 13 of SARFAESI Act, 2002. Thereafter, writ petition bearing W.P. (C) No. 6962 of 2013 was preferred by the respondent No.1 on 19th November, 2013 in which prayer was made to the effect that account of this respondent may be restructured. In the said writ petition an order dated 15 th October, 2013 was passed by this appellant under Sub-Section (3)(A) of Section 13 of SARFAESI Act, 2002 which is annexed as Annexure-5 to the writ petition. It further appears that this order was not specifically challenged in the prayer portion of the writ petition, but, it was challenged by preferring an Interlocutory Application No. 9008 of 2013, which was allowed by the learned Single Judge and against the order of learned Single Judge the bank has preferred this Letters Patent Appeal mainly for the reason that as already the possession notice has been issued on 17 th October, 2013, no useful purpose will be served by this amendment because under Section 13 an appeal is tenable against the order passed by this appellant under Section 13(4) of the SARFAESI Act, 2002, before Debt Recovery Tribunal. The prayer for amendment which was allowed by the learned Single Judge is also challenged on the ground that it will change the very nature of the writ petition. The things cannot be done directly which has been done indirectly in the facts of the present case. Counsel for the appellant also relied upon Section 17(2) of the SARFAESI Act, 2002 and has submitted that possession notice under Section 13(4) 3 has not been challenged, no useful purpose will be served if amendment is allowed.
3. It appears that learned Single Judge has not committed any error in allowing the amendment as sought for in Interlocutory Application No. 9008 of 2013 preferred by the original petitioner in W.P.(C ) No. 6962 of 2013 mainly for the reason that by allowing this amendment the nature of the writ petition will not be change at all. Moreover, the order passed by this appellant is already annexed as Annexure-5 to the writ petition.
4. The contention of the learned counsel for the appellant that even if the amendment is allowed no relief can be granted in the writ petition and, therefore, such type of amendment ought not to have been granted by the learned Single Judge, is not accepted by this Court, mainly for the reason that even if the prayer made in the writ petition after the amendment is allowed, cannot be granted, but, the amendment can be allowed by the learned Single Judge. Arguments on the merits of the amended prayer is one thing and grant of amendment is altogether another thing. Sometimes amended prayer can also be rejected by the very same Single Judge that does not mean that amendment should not be allowed, because to allow to amend the prayer depends upon the facts of the case.
5. In the facts of the present case, the prayer of restructuring of the account was rejected by the appellant- bank therefore, writ petition was preferred. Now, order of the appellant under Section 13 (3)(A) of SARFAESI Act, 2002 is also much nearer to the rejection of restructuring of the account and, hence, if original petitioner wants to succeed in the main prayer, the petitioner is bound to challenge the order passed under Section 13(3)(A) of the SARFAESI Act, 2002 and, therefore, Interlocutory Application has been preferred to modify the prayer 4 portion. Nothing is unusual and nothing is so objectionable, nothing is surprising because main prayer is such that the original petitioner has to challenge the order of the appellant-bank under section 13(3)(A) of the SARFAESI Act, 2002.
6. Allowing of the amendment does not mean that the amended prayer is allowed in the writ petition. The objections raised by this appellant is : (a) Under Section 17 of the SARFAESI Act, 2002 order passed by the appellant-bank under Section 13(4) is appellable before Debt Recovery Tribunal and as per the decision of the Hon'ble Supreme Court in (2010) 8 SCC Page 110 and (2009) 8 SCC Page 366 one has to go to Debt Recovery Tribunal. (b) Main prayer may not be granted as per appellant because efficacious alternative remedy is available mainly for the reason that possession notice under Section 13(4) of the SARFAESI Act, 2002 has not been challenged either in the writ petition or before the Debt Recovery Tribunal. (c) Main prayer in the writ petition, even amended, may not be granted because restructuring of the account of original petitioner is not a legal right vested with the original petitioner nor there is a public duty vested with the appellant that restructuring is bound to be given to the original petitioner.
7. These grounds are the grounds for opposing the main prayers in the writ petition, but, these cannot be the ground for rejection of the amendment of the prayer in the writ petition. Amendment of the prayer is one thing and allowing the amended prayer is altogether another thing. On merits this appellant can always argue out the case because W.P.(C ) 6962 of 2013 is already pending.
8. It has been held by the Hon'ble Supreme Court in the 5 case of Punjab National Bank Versus Indian Bank and Another reported in (2003)6 SCC Page no. 79 in Paragraph Nos. 13 and 14 which reads as under:
“13. We may now peruse the decision of this Court in this case of Pirgonda. The principle regarding the law of amendment has been laid in the last paragraph of the judgment but we may quote the following relevant passage which reads as under (AIR p. 366, paras 10-11) “We think that the correct principles were enunciated by Batchelor, J.
in his judgment in the same case viz. Kisandas Rupchand case when he said at pp. 649-50: 'All amendments ought to be allowed which satisfy the two conditions (a) of not working injustice to the other side , and (b) of being necessary for the purpose of determining the real questions in controversy between the parties....but I refrain from citing further authorities, as, in my opinion, they all lay down precisely the same doctrine. That doctrine, as I understand it, is that amendment should be refused only where the other party cannot be placed in the same position as if the pleading had been originally correct, but the amendment would cause him an injury which could not be compensated in costs. It is merely a particular case of this general rule that where a plaintiff seeks to amend by setting up a fresh claim in respect of a cause of action which since the institution of the suit had become barred by limitation, the amendment must be refused; to allow it would be to cause the defendant an injury which could not be compensated in costs by depriving him of a good defence to the claim. The ultimate test therefore still remains the same: can the amendment be allowed without injustice to the other side, or can it not ?' Batchelor, J.
made these observations in a case where the claim was for dissolution of partnership and accounts, the plaintiffs alleging that in pursuance of a partnership agreement they had delivered Rs. 4001 worth of cloth to the defendants. The subordinate Judge found that the plaintiffs did deliver the cloth, but came to the conclusion that no partnership was created. At the appellate stage, the plaintiff abandoned the plea of partnership and prayed for leave to amend by adding a prayer for the recovery of Rs 4001. At that date the claim for the money was barred by limitation. It was held that the amendment was rightly allowed, as the claim was not a new claim. The same principles, we hold, should apply in the present case. The amendments do not really introduce a new case, and the application filed by the appellant himself showed that he was not taken by surprise; nor did he have to meet a new claim set up for the first time after the expiry of the period of limitation.” (Emphasis Supplied) Another decision which has been relied upon on behalf of the appellant is reported in Gajanan Jaikishan Joshi V. Prabhakar Mohanlal Kalwar 6 wherein the suit was for specific performance of the contract. No averments as per Section 16-C of the Specific Relief Act to the effect that the plaintiff was ready and willing to fulfill its obligation under the contract were made in the plaint. The issue relating to this question was to be tried as preliminary issue at which stage an application for amendment was made for adding the necessary averments complying with Section 16-C of the Specific Relief Act. The application was opposed inter alia on the ground of limitation. The objections were rejected and the application for amendment was allowed and this Court observed that by the amendment indicated above no fresh cause of action was sought to be introduced by the plaintiff and all that was ought to be done was to complete the cause of action for specific performance which relief had already been prayed for. Referring to the decision of Pirgonda it was observed that all amendments ought to be allowed which do not result in injustice to the other side and would be necessary for purposes of determining the real question in controversy. Yet another consideration would be viz. Where the other party cannot be placed in the same position, if the plea had been correctly taken originally, such an amendment would cause him an injury which could not be compensated in costs. It is also observed that where a fresh claim is sought to be set up by an amendment which would be barred by limitation it may entail rejection of prayer for amendment. The court also made reference to a decision in the case of L.J.Leach and Co. Ltd. V. Jardine Skinner and Co. and quoted a passage from the said case as follows: (AIR p. 362, para 16)
“16. 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 the application. But 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 interests of justice.” Another decision referred to is reported in Sampath Kumar V. Ayyakannu. It has been observed in this case that mere delay in making the application for amendment may not be very relevant but the stage of the proceedings may be a more relevant factor to be taken into account. The amendments at pre-trial stage may ordinarily be permitted. It is also observed that where the basic structure of the suit remains unchanged a cause of action sought to be introduced which arose during the pendency of the suit should be allowed to be introduced including the nature of the relief. On behalf of the appellant it has been submitted that while considering such questions like amendment of plaint etc. the plaint should be read as a whole and all averments made in different paragraphs and clauses including relief clause should be taken into account; rather than to confine to 7 certain averments made here and there in one, or the other paragraph, or the relief clause, leaving aside the rest. In this connection reference has been made to a decision of this Court reported in Nichhalbhai Vallabhai V. Jaswantlal Zinabhai. Yet another decision on the point as relied upon by the appellant is reported in Corpn. of the City of Bangalore V. M. Papaiah. The relief for permanent injunction was prayed for based on claim of title over the property but no declaration of title in the property was prayed nor that for possession. The amendment sought in such circumstances was allowed observing that the plaint has to be read as a whole and the question of amendment should be considered in that light and not merely on the basis of the prayer clause. In this light the appellant submits that it is only appropriate that the averments made in the plaint in general may be read as a whole. It is submitted that the background in which the controversy arose, more particularly relating to claim in dollars would also be relevant for the purpose. In that connection, as indicated earlier, the terms of the bank guarantee provide that US dollar is the currency of account and payment in dollars for each and every sum at any time due from guarantor. The said bank guarantee was assigned in favour of the plaintiff-appellant by Indo-Europe. Notice of demand given by the plaintiff by letter dated 14-8-1996 also called upon Defendant 1 to pay the outstanding amount of USD5237,284.54. Again the demand was reiterated for payment in USD5237,284.54, the demand was repeated subsequently also for payment in dollars. Para 42 of the plaint quoted earlier clearly indicates that the plaintiff is entitled to receive, recover and decree for USD5237,284.54. Again the appellant refers to para 46 of the plaint which has also been quoted earlier, praying for decree in USD and in the alternative, if not so decreed in dollars, then it may be allowed in equivalent value in rupees. Prayer (v) seeks a direction that decretal amount be paid in US dollars. In the background indicated above and the categorical averments made in the plaint including the prayer in clause (v), it has been submitted that in effect and for all purposes, decree in dollars has been prayed for, which fact is very much in the knowledge of the defendant. True, as we feel, in some paragraphs and in the caption of the cause-title of the suit, rupee equivalent of USD has been indicated first and dollar later as well as in Prayers (i) and (ii) but that would not mean that there is no claim and prayer for decree in terms of dollars at all. We find it to be so by reading the plaint as a whole.” (Emphasis Supplied) In view of the aforesaid decision amendment in the prayer can be allowed on merit. The amended prayer can always be objected by this appellant on all counts including availability of efficacious alternative remedy etc.
9. As a cumulative effect of the aforesaid facts and reasons and judicial pronouncements there is no substance 8 in this Letters Patent Appeal. Hence, the same is hereby dismissed. Nonetheless, looking to the facts and circumstances of the case we hereby request the learned Single Judge to finally dispose of the Writ Petition bearing W.P.(C) No. 6962 of 2013 as expeditiously as possible, preferably within a period of four months from the date of presentation of the copy of the order passed by this Court by the appellant. (D.N.Patel, J.) (Ratnaker Bhengra, J.) Nibha/