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M/s Madhavi Investment And Trading Pvt. Ltd. v/s Mr. Damodar Vassant Parulekar & Another


    Decided On, 31 July 2009

    At, In the High Court of Bombay at Goa


    For the Petitioner: S. D. Lotlikar, Senior Advocate with Ms. S. Vaidya, Advocate. For the Respondents: S. Samant, Advocate.

Judgment Text

1. Rule, returnable forthwith. Heard by consent of the parties.

2. Order dated 01.12.2008 passed by the Ad hoc District Judge-I, at Panaji, Goa allowing the amendment to the written statement is being challenged in the present writ petition.

3. The petitioner/plaintiff M/s. Madhavi Investment and Trading Pvt. Ltd. of Vasco-da-Gama, Goa instituted a suit for recovery of its dues under an agreement for sale dated 2.5.1995 of a flat situate in Madhuban Shopping and Residential Complex at Panaji to the respondents/defendants. The petitioner/ plaintiff pleaded that out of the total consideration of Rs.6,27,000/-, the defendants paid total amount of Rs.3,00,000/- on or after the execution of the said agreement and had agreed to make the good payment of balance of Rs.3,38,410/- inclusive of share money, water and electricity meter deposit, legal expenses etc. due under the said agreement in the instalments and in any event against the delivery of the possession of the suit flat. The petitioner/plaintiff further pleaded that the suit flat was ready for delivery and occupation in October 1995 and as such, the defendants were called upon by the plaintiff to take possession of the same by the letter dated 12.10.1995 on paying the balance amount due under the said agreement. According to the petitioner plaintiff, the respondent/defendant No.1Damodar Parulekar, on receipt of the said letter, represented to the plaintiff that the flat was required immediately for the purpose of interior decoration and furnishing and he was unable to pay the balance amount of Rs.3,38,410/- before taking the possession, and in lieu thereof, he was ready and willing to issue four post dated cheques to cover the said amount and permanent possession of the suit flat can be given to them on encashment of the said post dated cheques; and in such circumstances in discharge of their liability, the respondent / defendant No.1 had signed and issued four post dated cheques on 19.10.1995 while taking temporary possession of the suit flat for the purposes of interior decoration and furnishing. Eventually, it is the case of the petitioner/ plaintiff, the said cheques, which were duly presented to the Bankers of the respondents/defendants i.e. Mapusa Urban Co-operative Bank Ltd., Panaji Branch, were dishonoured and returned with a remark ?payment stopped by the drawer? on 30.01.1996 giving rise to the cause of action for institution of the said suit.

4. The defendant denied the suit claim vide written statement dated 17.8.1999 as per Exh.B to the petition and more particularly, pleaded as follows:

Para 11 ? That subsequent to the telephonic discussions in between them and Shri Bandekar of the plaintiff, in the morning of 30.10.1995 Shri Bandekar of the plaintiff came to the shop of the defendants at Panaji and received from the defendant No.1 a cash sum of Rs.3,38,410/-, which was the amount covered by the aforesaid four cheques.?

Sub-para 9 and para 18 ?.....But only putting amount in figures and signed the said cheques and delivered to Shri Bandekar of the plaintiff on 16.10.1995.?

Para 10 - .... All the above four cheques delivered to Shri Bandekar of the plaintiff on 16.10.1995.

5. The respondent/defendant No.1, thereafter, moved an application dated 25.9.2008 for amendment of the written statement contending that his Advocate had made mistakes in drafting the written statement and incorporated therein certain material contrary to his instructions, and, therefore, the written statement requires amendments for the purpose of furnishing clarification and explanation as follows:

(i) substitute the aforesaid assertion in para 11 with: ?that on 30.10.1995, in the morning time, Shri Bandekar of the plaintiff called the defendant No.1 on telephone and informed that he is unable to leave Vasco, due to his urgent and unavoidable personal engagement at Vasco in the morning time on that day and further requested the defendant No.1 to bring the cash at his residence at Vasco. The defendant No.1, subsequent to the said telephonic discussion in between the defendant and Shri Bandekar of the plaintiff in the morning on 30.10.1995, visited the residence of Shri Bandekar and handed over a cash of sum of Rs. 3,38,410/-, which was the amount covered by the aforesaid four cheques?,

(ii) substitute the date of delivery of the cheques to Mr. Bandekar of the plaintiff on 16.10.1995 with the dates 2nd / 3rd October, 1995.

(iii) delete phrase ?but only putting amount in figures? from para 9 and para 18.

6. The respondents/ defendants submitted that no prejudice would be caused to the plaintiff if the amendment was allowed as it did not give rise to any new case or alter the cause of action or the nature of the suit, and such amendment was just and necessary for the purpose of determining the real controversy in question; and he had in bonafide belief that the written statement came to be prepared as per his instructions without any mistakes, had signed and verified the same without minutely going through the contents thereof and could realise the said mistake only when he had checked the written statement after his cross-examination in the criminal case on 1.9.2008. The application for the amendment was seriously contested more particularly, on the ground that the amendments sought to the written statement, were malafide, without any basis and designed to rob the plaintiff of valuable right, which had accrued to them on account of the admissions made in the written statement.

7. The learned Ad hoc District Judge-I, Panaji merely observed in cryptic order that the proposed amendment though belated, does not change the cause of action or the nature of the suit nor it amounts to withdrawal of admissions and does not smack of malafides. The learned Senior Advocate Lotlikar for the petitioner/ plaintiff assailed these very observations and submitted that the Trial Court completely overlooked the fact that the respondents/defendants were set to achieve withdrawal of valuable admissions available from the assertions in the written statements regarding (i) the events on 30.10.1995 leading to the alleged payment of the balance amount in cash to Mr. Bandekar of the plaintiff (ii) date of delivery of the cheques to the plaintiff (iii) filing up of the amounts in figures in the cheques, obviously with malafide intention to make out a new case in tune with the cross-examination of the defendant No.1 Damodar in a criminal case arising out of the dishonour of the said cheues. In support of his submissions, he relied on the judgments reported in AIR 1977 SC 680, M/s. Modi Spinning and Weaving Mills Co. Ltd. and Another Versus Ladharam and Company, AIR 1997 Bombay 257 Vandana S.P. Salgaonkar Versus Bank of India and another, AIR 1998 SC 618 Harilal Versus Kalyanmal and others.

8. The learned Advocate Samant for the respondents, submitted that there would be no material change in defence with the amendments solicited by the respondents/defendants in their written statement in as much as the defence in terms of making the payment of dues under the said agreement in cash to the petitioner/ plaintiff on 30.10.1995 remained unchanged except as regards the place of making the payment and surrounding circumstances. The fact of delivery of the said aforesaid cheques to the petitioner/ plaintiff, he argued, also remained unchanged except the date of delivery of such cheques to the plaintiff. Substantially, therefore, the amendments sought to be made, were of clarificatory or explanatory in nature and were necessary to be made for resolving the real controversy in issue. Relying on the judgments reported in 2006(6) SCC 498 Baldev Singh and others Versus Manoharsing and another, AIR 2007 SC 2511 Andhra Bank Verus ABN Amro Bank N. V. and Others. he argued that the principles applicable to the amendment of the plaint differ from the principles applicable for amendment of the written statement in as much as the law conferred wide power and unfettered discretion on the Court to allow amendment of the written statement at any stage of the proceedings and even in consistent or new defences can be raised in the written statement.

9. Certainly, as can be seen from the text of Order 6, Rule 17 of C.P.C., the amendment to the pleadings can be allowed at any stage of the proceedings, if the Court finds such amendment to be necessary for the purpose of determining real question in controversy between the parties. Belated moving of an application for amendment of the pleadings, would not by itself be a ground for rejection of such application. However, delay in moving such application is relevant for the purpose of appreciating the bonafides of the applicant. In the instant case, the application for amendment of the written statement came to be moved 9 years after filing of the written statement particularly, on the ground of gap between the instructions furnished by the defendant to his Advocate Mr. Waman Bodke and the written statement prepared by his Advocate. Verification below the written statement poses some questions as to how the discrepancy in the written statement and the instructions given for drafting of written statement was not noticed by the defendants at the time of verification of such written statement. The nature of the material pleaded in the written statement also legitimately poses a question about incorporation of such pleadings in the written statement due to typographical / clerical mistake. Amendments sought are not merely for the purposes of reorganisation of facts for proposing a new or alternative defence, but appear to have been thoughtfully designed to change factual matrix of the defence namely (i) the place of handing over the cash payment to Shri Bandekar (ii) the date of delivery of the said cheques to the plaintiff (iii) author of the writing in figures of amount in the said cheques. Changes solicited in the written statement obviously are neither clarificatory nor explanatory in nature particularly, when such changes bring about a complete departure from the fact originally pleaded.

10. In Baldev Singh's case (supra), what was alleged to be changed by virtue of amendment to the written statement was the nature of the defence without changing its factual matrix. In that context, the Apex Court held that adding a new ground of defence, substituting or altering the defence, even raising inconsistent defences in the written statement, is permissible, as such exercise does not raise the same problem as adding, altering or substituting a new cause of action in the plaint. After going through the written statement and the application for amendment of the written statement in depth, the Apex Court did not find withdrawal of any admission by the defendant by way of amending the written statement and, therefore, did not hesitate to allow the plea of the defendant appellant for filing an amended written statement in the said case. In Andhra Bank's case (supra), the Apex Court allowed the defendant to raise additional ground of defence in the written statement by way of amendment. The defendant No.1 therein thus, was permitted to raise the point of maintainability of the suit against them without disturbing the factual matrix pleaded in his original written statement. Both these cases, therefore, are of no avail to the respondents/ defendants.

11. Amendments to the written statement seeking to displace the plaintiff completely from the admissions made by the defendants in the written statement were time and again, as seen from the judicial precedents cited by the petitioner plaintiff, deprecated by the Apex Court rightly, because such amendments tinkered with valuable right, which accrued to the adversary (plaintiff) by means of an admission. Section 17 of the Evidence Act defines the admission as a statement, oral or documentary, which suggests any inference as to any fact in issue or relevant fact and which is made by any of the persons and under the circumstances thereafter mentioned. Such admissions, subject to the provisions of Evidence Act, have testimonial value or evidenciary force and as such clothe the adversary with valuable right to gain advantage therefrom. The deprivation of such valuable right is foul in the eyes of law.

12. As discussed above, there is conscious effort to di

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splace the plaintiff from such admissions available in the original written statement by means of the amendments sought to the written statement. If it was merely reorganisation of the given factual matrix or its elaboration to constitute new or alternative defence, there could not have been any problem in amending the written statement. However, in the instant case, the things do not stop at the reorganisation or elaboration of the facts, but proceed to take complete somersault on the relevant facts pleaded previously. This aspect of the matter was not considered in depth by the learned Ad hoc District Judge-I at Panaji while passing the impugned order and he thus, fell in gross error. The impugned order, therefore, deserves to be set aside. 13. Before setting aside the impugned order, the learned Trial Court needs to be reminded that admissions are not conclusive proof of the matters admitted and, therefore, the learned Trial Court is free to weigh the circumstances in which such admissions were made while appreciating the evidence led by the parties. In the given facts and circumstances, the impugned order dated 01.12.2008 passed by the Ad hoc District Judge-I, Panaji, Goa in Special Civil Suit No.12/1999/B, is set aside. Rule is made absolute with no order as to costs. Liberty granted to the respondents/defendants to lead evidence in rebuttal of such admissions.