1999 Supreme(Bom) 178

IN THE HIGH COURT OF BOMBAY
A.C. Agarwal A.V. Savant, JJ.
Union Bank of India..... Appellant.
Versus
Kokila Nitish Kotak others ..... Respondents.
Appeal No. 269 of 1998 in Chamber Summons No. 82 of 1997 in Suit No. 4821 of 1995, decided on 9-3-1999.
Advocates appeared :
S.G. Gupte with V.V. Warerkar i/b Warerkar and Warerkar, for appellant.
Jawahar J. Thakkar, for respondent Nos. 1 and 2.

Headnote:Order VI, Rule 17-Amendment of W.S.-In this case it was held that amendment cannot be allowed which would result in denying benefit of admission earlier written statement.

       Order VI, Rule 17-See Letters Pitent, clause 14.

       Clause 15-Civil Procedure Code 1908, Order VI, Rule 17-Appealability-Impugned order permitting amendment of written statement -As a result of such amendment right accrued to plaintiff is taken away-Same facts contained in plaint admitted in written statement of defendant-By said amendment those facts denied-Thus right which accrued to plaintiff because of admissions is gone-Hence such amendment was not permissible-Held impugned order though interlocutory becomes judgment within meaning of clause 15 of L.P.-Hence such order is appeal able.-If specific admissions were contained in the written statement, which are reproduced earlier, namely in paras 12, 14, 17, 18 and 32 and if the result of the impugned order was to take away the right accrued to the appellant as a result of those admissions the impugned order, though interlocutory would be a judgment within the meaning of clause 15 of the Letters Patent. Thus relying upon the ratio of the Apex Court decision in Shah Babulal Khimfis case, Court overruled the preliminary objection and hold that the impugned order is a judgment within the meaning of clause 15 of the Letters Patent. It is thus clear that if the defendant makes an admission of any fact alleged against him as was done in the present case, when the second defendant pleaded his case the written statement. Held it would not be permissible in law to amend the written statement which would have the result of denying the benefits of the admissions to the appellants.

       Clause 15 and Civil Procedure Code, Order 6, Rule 17-Defendant permitted to amend written statement which resulted in seeking to displace plaintiff completely from admissions made in earlier written statement Order though interlocutory adversely affected right which had accrued to plaintiff-Letters Patent Appeal against said order tenable-Order impugned Judgment under clause 15 Letters Patent-Impugned order set aside.-It is well settled that though a defendant may take inconsistent pleas, he cannot be permitted to substitute the written statement which has the result of seeking to displace the plaintiff completely from the admissions made in the earlier written statement. It would not be permissible in law to amend the written statement which would have the result of denying the benefits of the admissions to plaintiff.

       In the written statement filed by the second respondent-husband of the first respondent in reply to the claim of the plaintiff- Bank as filed in the High Court (Original Side) there was an admission of the fact that the amount of Rs. 13,70,000/- was borrowed as a Term Loan from the Plaintiff-Bank for purchase of the flat and that the promissory note was executed for the said amount. There was virtually an admission in the correspondence of the liability to the tune of Rs. 26,52,360.50/demanded under the notice dated 7th August, 1995. There ,was also an admission of the creation of an equitable mortgage and the fact that the second defendant did not have any other easily saleable assets and, therefore, the mortgaged property be sold by public auction and amount be paid to the plaintiff. However, the defendant No.2 sought to amend the written statement deleting several admissions. In para 18 of the written statement the defendant No.2 conceded to the decree in terms of prayers (a) and (b) on admission. The Single Judge allowed the application for amendment of the written statements as a result of which the admissions as made were completely retracted. The amendment as allowed was challenged in appeal under clause 15 of the Letters Patent.

       Held, that if specific admissions were contained in the written statement and if the result of the impugned order was to take away the right accrued to the appellant as a result of those admissions, the impugned order, though interlocutory, would be a judgment within the meaning of clause 15 of the Letters Patent. The impugned order is a judgment within the meaning of clause 15 of the Letters Patent. Permitting the second defendant to, delete the categoric admissions in respect of his liability to pay the specific amount, rate of interest, the creation of an equitable mortgage in respect of the property would be contrary to law. The amendment would, defeat the claim of the appellant bank on the original pleadings. The impugned order was unsustainable. The appeal, therefore, allowed.