Smt. Urmila Devi Vs. State Bank of India, Tupudana Branch and ors. - Court Judgment

Excerpt:
civil procedure code, 1908, order vi, rule 17 - amendment of plaint--conversion of money suit into a mortgage suit--specific pleading with regard to creation of equitable mortgage by way of security by depositing original sale-deed by defendant no. 2, guarantor--evidence and pleadings of plaintiff-bank showed that there was sufficient facts already pleaded with regard to fact of mortgaging property by defendants in order to secure loan amount--plaintiff-bank had not added a new cause of action by way of amendment--plaintiff-bank initially asked for relief for money decree--but subsequently, by amendment sought another relief in nature of mortgage decree--additional relief sought for, based on same cause of action--would not amount to changing very nature of suit, nor new claim was set-up by plaintiffs in amendment--held, such amendment by way of addition of one more relief on same cause of action, even sought after expiry of limitation, can be allowed. - - 7. before i express my view with regard to the legality and validity of the impugned order, i would like first to look to the pleadings of the plaintiffs. but, it is well recognised that where the amendment does not constitute an addition of a new cause of action or raise a new case but amounts to no more than adding to the facts already on the record, the amendment would be allowed even after the statutory period of limitation. they contend that the amendment introduces a new cause of action, that a suit on that cause of action would now be barred by limitation, that the plaintiff had ample opportunity to amend their plaint but that they failed to do so and that owing to lapse of time the defendants would be seriously prejudiced if this new claim allowed to be raised. against 'a' and 'b'.apart from the decree obtained in the earlier suit no particular amendments were made in the plaint as to the facts or grounds on which the plaintiff based his title to the suit property as against 'b'.the plaintiff made an application for permission to give better and further particulars of the claims made in the plaint. ..but i refrain from citing further authorities, as, in my opinion, they all lay down precisely the same doctrine. 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. m.y. eqbal, j.1. this civil revision application, at the instance of the defendant-petitioner, is directed against the order dated 15-2-99 passed by sub-judge, ix, ranchi in money suit no. 40/84 whereby the petition filed by the plaintiff/opposite party no. 1 seeking amendment in the plaint has been allowed and the money suit has been ordered to be converted into a mortgage suit.2. the relevant facts of the case for consideration of the matter are as follows:the plaintiff, state bank of india, instituted the aforementioned suit against the petitioner-defendant and also other defendants (opp. parties 2 and 3) for a decree for recovery of a sum of rs. 9,42,450.97 paise together with pendente lite and future interest. it is stated that the petitioners were allowed various financial assistance by way of cash credit facility and term loan for running the business. in order to satisfy re-payment of loan facility given, the defendants-petitioners and other opposite parties executed various documents promising, inter alia, to re-pay the entire loan together with interest according to the specific terms of the agreement.3. the suit was contested by the petitioners by filing written statement talcing various defence in the written statement.4. pending hearing of the suit, the plaintiffs filed an application under order vi, rule 17 read with section 151, c.p.c. seeking amendment in the plaint by making additional prayer for a mortgage decree in respect of the properties alleged to have been given by the petitioners by way of equitable mortgage. the said prayer was opposed by the petitioners by filing rejoinder and the court below, by the impugned order, allowed the amendment application for amendment of the plaint.5. mr. debi prasad, learned sr. counsel appearing on behalf of the petitioners assailed the impugned order as being illegal and without jurisdiction. learned counsel firstly submitted that the relief sought for by the plaintiffs by amendment of the plaint is barred by limitation and, therefore, the court below has committed serious illegality in allowing the amendment. learned counsel further submitted that the amendment sought for is a belated one inasmuch as it was filed about 14 years after the institution of the suit and on that account alone the amendment could not have been allowed. learned counsel relied upon a decision of the supreme court in the case of pirgonda hongond patil v. kadgonda shidgonda patil and ors. reported in : [1957]1scr595 and in the case of a.k. gupta and sons ltd. v. damodar valley corporation reported in : [1966]1scr796 .6. on the other hand, mr. kameshwar prasad, learned counsel appearing on behalf of the plaintiff-bank submitted that there is no limitation in filing amendment petition and there is no bar for allowing amendment even after expiry of the period of limitation. learned counsel further submitted that in the original plaint there are sufficient pleadings about creation of mortgage by the defendants and the facts showing the mortgage of the properties by the petitioners are already on record. in that view of the matter the court below has rightly allowed the amendment by passing the impugned order.7. before i express my view with regard to the legality and validity of the impugned order, i would like first to look to the pleadings of the plaintiffs. a copy of the plaint has been filed as annexure-a to the application filed by the plaintiff-bank. from perusal of the plaint, it appears that besides other facts with regard to advancement of cash credit facilities on execution of various documents by the defendants, it is stated in para 11 of the plaint that defendant nos. 2 and 3 who were the guarantors, have also executed necessary documents to cover the liability in case defendant no. 1 fails to liquidate the loan. defendant no. 2 has also given his immovable properties in security by creating equitable mortgage by depositing two registered sale-deeds no. 11472 dated 4-9-70 and another dated 15-12-70. it is, therefore, evident that there is specific pleading with regard to creation of equitable mortgage by way of security by depositing the original sale-deeds by defendant no. 2, the guarantor.8. in the amendment petition, besides other minor amendments, the plaintiffs sought to insert one more relief in the relief portion of the plaint in the following manner:the defendants may be ordered for payment of the suit amount with interest, cost, damages, and expenses with a specified period failing which final decree may be passed and the decretal amount may be realised by selling the mortgaged property described in the schedule below.this amendment petition was filed in november 1998 when some of the plaintiffs witnesses were examined. it appears that the branch manager of the plaintiff was examined as p.w. 1 who has proved the sale-deeds and stated in his, evidence that the defendant, guarantor deposited his sale-deed as security for due repayment of the loan. these documents were marked exhibits without objection.9. from the pleadings of the plaintiff-bank and the evidence adduced in support of the pleadings, it is evident that there is sufficient facts already pleaded with regard to the fact of mortgaging the property by the defendant in order to secure the loan amount and for this the plaintiffs also proved those pleadings by leading evidence. in my opinion, therefore, the plaintiffs have not added a new cause of action by way of amendment, rather, by the said amendment the plaintiffs wanted to add some additional facts and additional relief on the basis of the facts and cause of action already pleaded in the plaint. in such circumstance, the court below has rightly allowed the amendment sought for by the plaintiffs. it is not always that all amendments which is barred by limitation should be refused. there are some amendments which though claimed at a belated stage, can be allowed if such amendment does not constitute an additional or a new cause of action.10. in the case of vineet kumar v. mangal sait wadhera reported in : [1984]2scr333 , the apex court has laid down the principles of law with regard to amendment and observed:normally, amendment is not allowed if it chanches the cause of action. but, it is well recognised that where the amendment does not constitute an addition of a new cause of action or raise a new case but amounts to no more than adding to the facts already on the record, the amendment would be allowed even after the statutory period of limitation. the question in the present case is whether the seeking the benefit of section 39 of the new act there is a change in the cause of action. in a.k. gupta and sons v. damodar valley corporation : [1966]1scr796 , this court dealing with the cause of action observed as follows at p. 98 of air.the expression 'cause of action' in the present, context does not mean 'every fact which it is material to be proved to entitle the plaintiff to succeed' as was said in cooke v. gill (1873) 8 cp 107, 117 in a different context, for if it were so, no material fact could ever be amended or added and, of course, no one would want to change or add an immaterial allegation by amendment. that expression for the present purpose only means, a new claim made on a new basis constituted by new claim facts. such a view was taken in robinson v. unicos property corporation ltd. (1962) 2 all er 24 and it seems to us to be the only possible view to take. any other view would make the rule futile.11. in the case of l.j. leach and co. ltd. and anr. v. jardine skinner and co. reported in air 19s7 sc 357 the apex court considered the question whether a barred claim can be allowed by. way of amendment. in that case, the plaintiff instituted a suit for damages for conversion alleging that the goods in question were due to them under government quotas and that the defendants who had ordered them on their behalf, had themselves no title to them. the suit was decreed but the appeal preferred by the defendant was allowed holding that the claim of damages for conversion is misconceived. the plaintiff then preferred an appeal before the supreme court. in the appeal before the supreme court, the plaintiff-appellant applied for amendment of the plaint by raising, in the alternative, a claim for damages for breach of contract for non-delivery of the goods. the amendment was resisted by the defendant. allowing the amendment their lordships held as under .that would entail the dismissal of this appeal, but the plaintiffs have applied to this court for amendment of the plaint by raising, in the alternative, a claim for damages for breach of contract for non delivery of the goods. the respondents resist the application. they contend that the amendment introduces a new cause of action, that a suit on that cause of action would now be barred by limitation, that the plaintiff had ample opportunity to amend their plaint but that they failed to do so and that owing to lapse of time the defendants would be seriously prejudiced if this new claim allowed to be raised. there is considerable force in the objections. but, alter giving due weight to them, we are of the opinion that this is a fit case in which the amendment ought to be allowed. the plaintiffs do not claim any damages for wrongful termination of the agreement, ext. a, by the notice dated 13-6-1945. what they claim is only damages for nondelivery of goods in respect of orders placed by them and accepted by the defendants prior to the termination of the agreement by that notice. clause 14 of the agreement expressly reserves that right to the plaintiffs. the suit being founded on ext. a, a claim based on clause 14 thereof cannot be said to be foreign to the scope of the suit. schedule-e to the plaint mentions the several indents in respect of which the defendants had committed default by refusing to deliver the goods and the damages claimed are also stated therein. the plaintiffs seek by their amendment only to claim damages in respect of those consignments. the prayer in the plaint is itself general and merely claims damages. thus, all the allegations which are necessary for sustaining a claim for damages for breach of contract are already in the plaint. what is lacking is only the allegation that the plaintiffs are, in the alternative, entitled to claim damages for breach of contract by the defendants in not delivering the goods.12. in the instant case, from perusal of the plaint, it transpires that the facts pleaded therein entitle the plaintiffs to a number of reliefs. however, the plaintiffs initially asked for only relief for a money decree but subsequently by amendment sought another relief in the nature of mortgage decree. the additional relief sought for based on the same cause of action will not amount to changing the very nature of the suit. in such circumstances amendment cannot be refused.13. mr. debi prasad put heavy reliance on the decision in the case of p.h. patil v. k.s. patil reported in 1957 sc 363. in my opinion, the decision will not be of any help to the petitioners, rather, it will support the case of the opposite parties-bank. the facts of the case before the apex court was that the plaintiff obtained a decree for possession against 'a' but he was obstructed by 'b' in obtaining possession of the suit property in execution. his application under order xxi, rule 97 was dismissed and, thereafter, he instituted a suit under order xxi, rule 103, c.p.c. against 'a' and 'b'. apart from the decree obtained in the earlier suit no particular amendments were made in the plaint as to the facts or grounds on which the plaintiff based his title to the suit property as against 'b'. the plaintiff made an application for permission to give better and further particulars of the claims made in the plaint. the amendment al though was rejected by the trial court but was allowed by the high court. the supreme court re-iterating the principles enunciated by batchelor, j. in his judgment air 1933 bombay 644 observed: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 be amendment be allowed without injustice to the other side, or can it not?14. having regard to the facts and circumstances of the case and the law discussed hereinabove, i am of the definite view that in the instant case, the amendment sought for by the plaintiffs does not introduce a new case and the defendant has not taken the said amendment by surprise, neither the defendants have to meet any new claim set up by the plaintiffs in the amendment. such amendment by way of addition of one more relief on the same cause of action even sought after expiry of limitation; can be allowed.15. in the result, i do not find any merit in this application which is, accordingly, dismissed.

Judgment:

M.Y. Eqbal, J.

1. This civil revision application, at the instance of the defendant-petitioner, is directed against the order dated 15-2-99 passed by Sub-Judge, IX, Ranchi in Money Suit No. 40/84 whereby the petition filed by the plaintiff/opposite party No. 1 seeking amendment in the plaint has been allowed and the Money Suit has been ordered to be converted into a Mortgage suit.

2. The relevant facts of the case for consideration of the matter are as follows:

The plaintiff, State Bank of India, instituted the aforementioned suit against the petitioner-defendant and also other defendants (Opp. parties 2 and 3) for a decree for recovery of a sum of Rs. 9,42,450.97 paise together with pendente lite and future interest. It is stated that the petitioners were allowed various financial assistance by way of cash credit facility and term loan for running the business. In order to satisfy re-payment of loan facility given, the defendants-petitioners and other opposite parties executed various documents promising, inter alia, to re-pay the entire loan together with interest according to the specific terms of the agreement.

3. The suit was contested by the petitioners by filing written statement talcing various defence in the written statement.

4. Pending hearing of the suit, the plaintiffs filed an application under Order VI, Rule 17 read with Section 151, C.P.C. seeking amendment in the plaint by making additional prayer for a mortgage decree in respect of the properties alleged to have been given by the petitioners by way of equitable mortgage. The said prayer was opposed by the petitioners by filing rejoinder and the Court below, by the impugned order, allowed the amendment application for amendment of the plaint.

5. Mr. Debi Prasad, learned Sr. Counsel appearing on behalf of the petitioners assailed the impugned order as being illegal and without jurisdiction. Learned Counsel firstly submitted that the relief sought for by the plaintiffs by amendment of the plaint is barred by limitation and, therefore, the Court below has committed serious illegality in allowing the amendment. Learned Counsel further submitted that the amendment sought for is a belated one inasmuch as it was filed about 14 years after the institution of the suit and on that account alone the amendment could not have been allowed. Learned Counsel relied upon a decision of the Supreme Court in the case of Pirgonda Hongond Patil v. Kadgonda Shidgonda Patil and Ors. reported in : [1957]1SCR595 and in the case of A.K. Gupta and Sons Ltd. v. Damodar Valley Corporation reported in : [1966]1SCR796 .

6. On the other hand, Mr. Kameshwar Prasad, learned Counsel appearing on behalf of the plaintiff-Bank submitted that there is no limitation in filing amendment petition and there is no bar for allowing amendment even after expiry of the period of limitation. Learned Counsel further submitted that in the original plaint there are sufficient pleadings about creation of mortgage by the defendants and the facts showing the mortgage of the properties by the petitioners are already on record. In that view of the matter the Court below has rightly allowed the amendment by passing the impugned order.

7. Before I express my view with regard to the legality and validity of the impugned order, I would like first to look to the pleadings of the plaintiffs. A copy of the plaint has been filed as Annexure-A to the application filed by the plaintiff-Bank. From perusal of the plaint, it appears that besides other facts with regard to advancement of cash credit facilities on execution of various documents by the defendants, it is stated in para 11 of the plaint that defendant Nos. 2 and 3 who were the guarantors, have also executed necessary documents to cover the liability in case defendant No. 1 fails to liquidate the loan. Defendant No. 2 has also given his immovable properties in security by creating equitable mortgage by depositing two registered sale-deeds No. 11472 dated 4-9-70 and another dated 15-12-70. It is, therefore, evident that there is specific pleading with regard to creation of equitable mortgage by way of security by depositing the original sale-deeds by defendant No. 2, the guarantor.

8. In the amendment petition, besides other minor amendments, the plaintiffs sought to insert one more relief in the relief portion of the plaint in the following manner:

The defendants may be ordered for payment of the suit amount with interest, cost, damages, and expenses with a specified period failing which final decree may be passed and the decretal amount may be realised by selling the mortgaged property described in the Schedule below.

This amendment petition was filed in November 1998 when some of the plaintiffs witnesses were examined. It appears that the Branch Manager of the plaintiff was examined as P.W. 1 who has proved the sale-deeds and stated in his, evidence that the defendant, guarantor deposited his sale-deed as security for due repayment of the loan. These documents were marked exhibits without objection.

9. From the pleadings of the plaintiff-Bank and the evidence adduced in support of the pleadings, it is evident that there is sufficient facts already pleaded with regard to the fact of mortgaging the property by the defendant in order to secure the loan amount and for this the plaintiffs also proved those pleadings by leading evidence. In my opinion, therefore, the plaintiffs have not added a new cause of action by way of amendment, rather, by the said amendment the plaintiffs wanted to add some additional facts and additional relief on the basis of the facts and cause of action already pleaded in the plaint. In such circumstance, the Court below has rightly allowed the amendment sought for by the plaintiffs. It is not always that all amendments which is barred by limitation should be refused. There are some amendments which though claimed at a belated stage, can be allowed if such amendment does not constitute an additional or a new cause of action.

10. In the case of Vineet Kumar v. Mangal Sait Wadhera reported in : [1984]2SCR333 , the apex Court has laid down the principles of law with regard to amendment and observed:

Normally, amendment is not allowed if it chanches the cause of action. But, it is well recognised that where the amendment does not constitute an addition of a new cause of action or raise a new case but amounts to no more than adding to the facts already on the record, the amendment would be allowed even after the statutory period of limitation. The question in the present case is whether the seeking the benefit of Section 39 of the new Act there is a change in the cause of action. In A.K. Gupta and Sons v. Damodar Valley Corporation : [1966]1SCR796 , this Court dealing with the cause of action observed as follows at p. 98 of AIR.

The expression 'cause of action' in the present, context does not mean 'every fact which it is material to be proved to entitle the plaintiff to succeed' as was said in Cooke v. Gill (1873) 8 CP 107, 117 in a different context, for if it were so, no material fact could ever be amended or added and, of course, no one would want to change or add an immaterial allegation by amendment. That expression for the present purpose only means, a new claim made on a new basis constituted by new claim facts. Such a view was taken in Robinson v. Unicos Property Corporation Ltd. (1962) 2 All ER 24 and it seems to us to be the only possible view to take. Any other view would make the rule futile.

11. In the case of L.J. Leach and Co. Ltd. and Anr. v. Jardine Skinner and Co. reported in AIR 19S7 SC 357 the apex Court considered the question whether a barred claim can be allowed by. way of amendment. In that case, the plaintiff instituted a suit for damages for conversion alleging that the goods in question were due to them under Government quotas and that the defendants who had ordered them on their behalf, had themselves no title to them. The suit was decreed but the appeal preferred by the defendant was allowed holding that the claim of damages for conversion is misconceived. The plaintiff then preferred an appeal before the Supreme Court. In the appeal before the Supreme Court, the plaintiff-appellant applied for amendment of the plaint by raising, in the alternative, a claim for damages for breach of contract for non-delivery of the goods. The amendment was resisted by the defendant. Allowing the amendment their Lordships held as under .

That would entail the dismissal of this appeal, but the plaintiffs have applied to this Court for amendment of the plaint by raising, in the alternative, a claim for damages for breach of contract for non delivery of the goods. The respondents resist the application. They contend that the amendment introduces a new cause of action, that a suit on that cause of action would now be barred by limitation, that the plaintiff had ample opportunity to amend their plaint but that they failed to do so and that owing to lapse of time the defendants would be seriously prejudiced if this new claim allowed to be raised. There is considerable force in the objections. But, alter giving due weight to them, we are of the opinion that this is a fit case in which the amendment ought to be allowed. The plaintiffs do not claim any damages for wrongful termination of the agreement, Ext. A, by the notice dated 13-6-1945. What they claim is only damages for nondelivery of goods in respect of orders placed by them and accepted by the defendants prior to the termination of the agreement by that notice. Clause 14 of the agreement expressly reserves that right to the plaintiffs. The suit being founded on Ext. A, a claim based on Clause 14 thereof cannot be said to be foreign to the scope of the suit. Schedule-E to the plaint mentions the several indents in respect of which the defendants had committed default by refusing to deliver the goods and the damages claimed are also stated therein. The plaintiffs seek by their amendment only to claim damages in respect of those consignments. The prayer in the plaint is itself general and merely claims damages. Thus, all the allegations which are necessary for sustaining a claim for damages for breach of contract are already in the plaint. What is lacking is only the allegation that the plaintiffs are, in the alternative, entitled to claim damages for breach of contract by the defendants in not delivering the goods.

12. In the instant case, from perusal of the plaint, it transpires that the facts pleaded therein entitle the plaintiffs to a number of reliefs. However, the plaintiffs initially asked for only relief for a money decree but subsequently by amendment sought another relief in the nature of mortgage decree. The additional relief sought for based on the same cause of action will not amount to changing the very nature of the suit. In such circumstances amendment cannot be refused.

13. Mr. Debi Prasad put heavy reliance on the decision in the case of P.H. Patil v. K.S. Patil reported in 1957 SC 363. In my opinion, the decision will not be of any help to the petitioners, rather, it will support the case of the opposite parties-Bank. The facts of the case before the apex Court was that the plaintiff obtained a decree for possession against 'A' but he was obstructed by 'B' in obtaining possession of the suit property in execution. His application under Order XXI, Rule 97 was dismissed and, thereafter, he instituted a suit under Order XXI, Rule 103, C.P.C. against 'A' and 'B'. Apart from the decree obtained in the earlier suit no particular amendments were made in the plaint as to the facts or grounds on which the plaintiff based his title to the suit property as against 'B'. The plaintiff made an application for permission to give better and further particulars of the claims made in the plaint. The amendment al though was rejected by the trial Court but was allowed by the High Court. The Supreme Court re-iterating the principles enunciated by Batchelor, J. in his judgment AIR 1933 Bombay 644 observed:

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 be amendment be allowed without injustice to the other side, or can it not?

14. Having regard to the facts and circumstances of the case and the law discussed hereinabove, I am of the definite view that in the instant case, the amendment sought for by the plaintiffs does not introduce a new case and the defendant has not taken the said amendment by surprise, neither the defendants have to meet any new claim set up by the plaintiffs in the amendment. Such amendment by way of addition of one more relief on the same cause of action even sought after expiry of limitation; can be allowed.

15. In the result, I do not find any merit in this application which is, accordingly, dismissed.