(Prayer: This application filed under Order XIV Rule 8 of O.S Rules R/w. Order VI Rule 17 of CPC, to amend to paragraph 2 of the plaint in which he was stated that “The plaintiff financed and released payment of Rs.41,80,840/- to the first defendant inclusive of finance charges.....” instead it should be “The defendants committed default in repayment of installments under Hire Purchase Agreement HPMAA00159 and the total dues under the said agreement was rescheduled on the request of the defendants into Hire Purchase Agreement No. HP01MAA00142 dated 18.03.2002?”)1. Application filed seeking to amend the second paragraph of the plaint by deleting the statement “The plaintiff financed and released payment of Rs.41,80,840/- to the first defendant inclusive of finance charges.....” and inserting the statement “The defendants committed default in repayment of installments under Hire Purchase Agreement HPMAA00159 and the total dues under the said agreement was rescheduled on the request of the defendants into Hire Purchase Agreement No. HP01MAA00142 dated 18.03.2002”.2. The suit had been filed seeking a direction against the defendants to jointly and severally pay a sum of Rs.1,54,79,516.70/- together with future interest at 36% p.a., from the date of plaint till the date of realisation and for costs.3. It had been stated that the plaintiff is carrying on business of extending lease/hire purchase financing facilities with reference to goods, equipments, machinery and vehicles. The first defendant sought hire purchase finance for purchase of machineries, and executed a personal guarantee towards the hire purchase agreement. Accordingly, a Hire Purchase Agreement bearing No.HP01MAA00142 dated 18.03.2002 was executed. A sum of Rs.41,80,840/- was released to the first defendant. The amount was to be repaid in 36 monthly installments. Payment towards the first instalment was on 01.07.2002 and the payments towards the installments should end on 01.06.2005. It was also stated that if the monthly Hire installments are not paid, the plaintiff is entitled to additional finance charges at the rate of 36% p.a. It was stated that the defendants did not pay any installment. Repeated demands were made. The plaintiff issued a notice dated 06.06.2008 calling upon the defendants to pay a sum of Rs.1,54,79,516.70/- being the amount due as on 08.06.2008. It was under these circumstances that the suit was instituted.4. After denying the averments made in the plaint, the defendants also stated that the plaintiff should prove that consideration had passed under the Hire Purchase Agreement dated 18.03.2002. It was also claimed that the suit was frivolous, vexatious and the defendants suoght dismissal of the suit.5. Written statement had been filed only on behalf of the first defendant. The suit had been dismissed as against the second defendant by the learned Master on 21.12.2009.6. In the present application, it had been stated in the affidavit filed in support of the application that the defendant had committed default in the repayment of the installments under the Hire Purchase Agreement bearing No. HPMAA00159 and the total due under the agreement was rescheduled on the request of the defendants and a fresh Hire Purchase Agreement No. HP01MAA00142 dated 18.03.2002 was entered into by the parties. It was stated that the defendant had entered into several Hire Purchase Agreements with the plaintiff. It was stated that the statement made in paragraph No.2 that the plaintiff financed and released a sum of Rs.41,80,840/- to the first defendant is not correct but that there was only a rescheduling of the amount due. It was stated that no grievance would be caused to the defendants and that there was no shift in the cause of action and that the plaintiff is entitled to maintain the suit claim even post the amendment.7. A counter had been filed on behalf of the first defendant wherein it had been stated that this amendment had been filed after the written statement had been filed by the first defendant. It was also stated that the suit is barred by the law of limitation. It was stated that both in the plaint and in the documents, the Higher Purchase Agreement No. HPMAA00159 had not been mentioned. It was stated that the amendment would bring in a different cause of action. It was therefore stated that the application should be dismissed.8. Heard arguments.9. For the sake of convenience, the parties will be termed as plaintiff and the first defendant.10. The plaintiff is a company incorporated under the provisions of the Companies Act 1956 and carries on business in extending lease/Hire purchase financing facilities with reference to goods, equipments, machineries and vehicles. The first defendant had sought extension of financing facility for purchase of machineries, namely, one quantity of chilled cast iron roll. Along with the plaint, the original of the Hire Purchase Agreement dated 18.03.2002 had been filed. The statement of accounts had also been filed. The sale letter dated 18.03.2002 had also been filed. It has been the contention of the first defendant that no consideration had passed under the Hire Purchase Agreement dated 18.03.2002. However, it is the contention of the plaintiff that there were several Hire Purchase Agreements entered into between the plaintiff and the first defendant and that the Hire Purchase Agreement dated 18.03.2002 which is the basis of the claim in the suit was actually a result of rescheduling the dues existing and unpaid by the first defendant.11. Specific reference had been pointed out by the learned counsel for the plaintiff to the reply notice dated 20.06.2008 issued by the learned counsel for the first defendant. In the reply notice, it was pointed out that it had been stated that there were several Hire Purchase Agreements between the plaintiff and the first defendant commencing from January 1994. It was stated that the outstandings were paid and there was only a small portion towards interest which remained unpaid. It was stated that this resulted in a Hire Purchase Agreement being entered into on paper to ensure repayment of the existing dues under the earlier Hire Purchase Agreements. In effect, there was a rescheduling of the amounts due and on rescheduling of the outstandings, a fresh Higher Purchase Agreement had been prepared.12. Without going into the merits of the claims in the suit, I hold that the contentious issues, namely, whether consideration did actually pass under the Hire Purchase Agreement dated 18.03.2002 or whether the said agreement was only a rescheduling of the outstandings already existing are matters for trial, which require evidence to be let in by either parties.13. At any rate, the cause for action of the suit is on 18.03.2002, the date of the Hire Purchase Agreement. Whether the said Hire Purchase Agreement was a stand alone Hire Purchase Agreement or whether it was a result of rescheduling of existing outstandings is a matter to be decided on appreciation of evidence.14. In view of that observtaion, I hold that the plaintiff cannot be denied the opportunity of amending the plaint. However, it would also necessitate filing additional written statement by the first defendant. Without examining the facts in further detail, since the issues will have to be d
Please Login To View The Full Judgment!
etermined only during trial, I hold that there is also no shift in the cause of action and that it would only be just and proper that the plaintiff is called upon to explain the circumstances surrounding the Hire Purchase Agreement dated 18.03.2002 and the defendant is also given an opportunity to rebut the stand of the plaintiff.15. Viewed from that angle, I hold that the application can be allowed and the amendment sought may be permitted. To reiterate, the first defendant will have every opportunity to file additional written statement however within a period of 30 days from the date on which a copy of this order is made ready and delivered to the first defendant.16. The Application is allowed. No costs.17. Registry is directed to carry out necessary amendments in accordance with the Judges' Summons.