w w w . L a w y e r S e r v i c e s . i n



Narayanan Unni V/S Bank of Baroda

    RA-12 of 2001

    Decided On, 22 February 2002

    At, Debt Recovery Appellate Tribunal At Chennai

    By, THE HONORABLE JUSTICE: A. SUBBULAKSHMY. (CHAIRMAN)

   



Judgment Text


1. The petitioner Bank of Baroda has filed this petition in IA-2 for amendment of plaint as set out in the petition for amendment

(a) "To realise the plaint amount of Rs. 19,66,837/- with future interest at the agreed rate of 19.75% p.a. from the defendants 1 to 3 jointly and severally and from the assets especially from the movable and immovable assets scheduled hereunder which is hypothecated and mortgaged in favour of the applicant Bank.

(b) To realise the cost of the suit from the defendants 1 to 3 jointly and severally and from the assets especially from the movable and immovable assets scheduled hereunder which is hypothecated and mortgaged in favour of the applicant Bank.

(c) To realise the plaint amount of Rs. 19,66,837/- with future interest at the agreed rate of 19.75% p.a and the cost of the suit from the defendants 4 to 6 jointly and severally to the extent of the estate inherited by them from the deceased Mr. S. Sankaran Unni, and

(d) Such other reliefs which the Court may think just and proper for the ends of justice and the applicant may seek during the pendency of the suit."

2. The petitioner-respondent Bank contends that the 3rd defendant in the suit is the guarantor but no relief was sought for in the plaint as against the 3rd defendant and it is only typographical omission. To seek relief against defendants 3 to 6 it has been omitted in the prayer paragraph of the plaint of the suit by oversight and the plaint has to be amended as set out above.

3. The appellant-3rd defendant filed the counter contending that the order was passed by the learned Presiding Officer (PO), Debts Recovery Tribunal (DRT), Ernakulam after hearing the parties and after taking evidence and the plaint cannot be permitted to be amended. The 1st respondent further contends that the 3rd defendant had no liability, no relief was claimed against the 3rd defendant and 3rd defendant is only a formal party. The Counsel for the petitioner submitted that the amendment sought has to be allowed and is only a typographical error and the 3rd defendant is the guarantor and he has guaranteed for repayment of the loan and he has signed in the necessary documents and handed over to the Bank Officials and all the defendants are jointly and severally liable for the debt and the principal-debtors and the guarantors being jointly and severally liable to pay the entire debt the typographical omission which is the amendment sought for in the petition has to be incorporated in the plaint and the amendment has to be allowed.

4. On the other hand the Counsel appearing for the respondent submitted that under Order 6, Rule 17, CPC, amendment of pleading can be allowed before pronouncement of judgment, now the amendment petition has been filed in the appellate stage and the amendment cannot be allowed. She relies upon the decision of the Hon'ble Orissa High Court in B.N. Das and Ors. v. Bijaya Ketan Mohanty, AIR 1982 Orissa 145, wherein it has been held that the provisions of Order 6 Rule 17 and Order 1 Rule 10 reveal that the expressions "at any stage of the proceedings" and "at any stage of the suit" should cover the period between conclusion of hearing and pronouncement of judgment.

5. The petitioner Bank relies upon the decision of the Hon'ble Supreme Court in Nanduri Yogananda Lakshminarasimhachari and Ors v. Sri Agastheswamivarn, AIR 1960 Supreme Court 622 (V 47 C 97), wherein the Apex Court has held that the High Court was right in allowing at the appellate stage the amendment by the addition of a new prayer in the prayer clause of the plaint, when all the allegations had been made in the plaint and requisite pleas had been raised by the appellant, an issue was framed on the question, the parties were fully cognizant of the points in controversy and they had led the necessary evidence.

6. In the case on hand the requisite plea has been raised in the plaint. The plaintiff has specifically stated in the plaint that plaintiff Bank has sanctioned a cash credit facility under the guarantorship of 3rd defendant and Sri Sankaran Unni. The requisite plea has been raised by the petitioner Bank in the plaint. The parties were fully cognizant of the plaint plea in controversy and necessary evidence was also let in. The 3rd defendant was also examined as witness before the DRT and he has also given evidence on the facts pertaining to the 3rd defendant as has been pleaded in the plaint and there are no new facts to be allowed. The parties were alive to the real nature of the disputes and the available evidence were produced by both the parties and the necessary plea with regard to the 3rd defendant has also been set out in the plaint. The prayer for declaration is only a formal relief which flowed from the allegations in the plaint and as the requisite plea has been raised in the plaint and necessary evidence has also been let in by the parties. Following the decision of the Hon'ble Supreme Court, I hold that the amendment petition can be allowed at the appellate stage.

7. The Counsel for the petitioner further invited my attention to the decision of the Apex Court in Allahabad Bank, Calcutta v. Radha Krishna Maity and Ors., VII (1999) SLT 366=II (1999) BC 600=(1999) 6 Supreme Court Cases 755, and Allahabad Bank v. Canard Bank and Anr., IV (2000) SLT 325=IV (2000) BC 627=III (2000) CLT 129 (SC)=(2000) 4 Supreme Court Cases 406, and submitted that Section 21 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (the Act) gives sufficiently wide powers to the Tribunal and Appellate Tribunal to decide such questions of on priorities subject to only to the principles of natural justice. The Apex Court has held that the powers under Section 22 of the Act are wider than of those of Civil Courts and the only restriction of its powers is that the principles of natural justice have to be followed.

8. As there is specific plea in the plaint in respect of the amendment sought for and necessary evidence has also been let in, the relief sought for in the amendment petition in prayer paragraph has to be allowed applying the principles of natural justice.

9. Accordingly the amendment petition is followed.

10. Without disturbing the order passed by the learned PO, DRT, Ernakulam, the matter is remanded back to the DRT only for the limited purpose of carrying out the amendment in the plaint and for disposal of the case for the relief sought for in the amendment petition after giving opportunity to the 3rd defendant to file additional written statement, if any, and frame additional issues, if any, and giving opportunity to the 3rd defendant to let in any further evidence.

RESULT

11. The amendment petition is allowed with above said observations. No costs.