Back
1992 Supreme(Cal) 34
High Court Of Calcutta
A. N. Ray
LAKSHMI COMMERCIAL BANK LTD. - Appellant
Versus
BENGAL NATIONAL TEXTILES MILLS LTD. - Respondent
Suit 331 Of 1984
Decided On : 01/29/1992
GIRISH GUPTA, R.K. KHANNA
Leave under Clause 12 of the Letters Patent can be granted after the presentation of the plaint, and delay in obtaining leave can be condoned in appropriate circumstances, such as when the delay is not unexplained and when the plaintiff is a government undertaking.
Headnote:
LETTERS PATENT - CLAUSE 12 - LEAVE TO INSTITUTE SUIT - GRANT OF LEAVE - DELAY - CONDONATION - AMENDMENT OF PLAINT - SUBSTITUTION OF PARTIES - LIMITATION.
Fact of the Case:
The plaintiff bank, Lakshmi Commercial Bank Ltd., filed a suit in 1984 without obtaining leave under Clause 12 of the Letters Patent, which was a mandatory requirement for instituting the suit. The bank sought leave to regularize the suit, amend the plaint, and substitute a deceased defendant. The main issue was whether leave under Clause 12 could be granted after the presentation of the plaint and whether the long delay in obtaining leave could be condoned.
Finding of the Court:
The court held that leave under Clause 12 could be granted after the presentation of the plaint, as the jurisdiction to grant such leave existed in law. The court also held that the long delay in obtaining leave could be condoned, considering the principles that a party should not suffer for the lapses of its advocate and that government litigations should be given more latitude in terms of time extensions. The court allowed the bank to amend the plaint and substitute the deceased defendant, but restrained the bank from making any application or instituting any proceedings against the substituted defendant for a period of two weeks to protect his limitation rights.
Issues: 1. Whether leave under Clause 12 of the Letters Patent could be granted after the presentation of the plaint? 2. Whether the long delay in obtaining leave could be condoned? 3. Whether the plaintiff bank could amend the plaint and substitute a deceased defendant?
Ratio Decidendi: 1. The court relied on the judgment in Kshitish Kumar Som v. State of Bihar, which laid down five propositions regarding the grant of leave under Clause 12. The second proposition contemplated the possibility of a suit being instituted for limitation purposes on one date and being receivable by the court on a subsequent date, after grant of leave under Clause 12. The court held that this delay was permissible and did not affect the validity of the suit. 2. The court considered the principles that a party should not suffer for the lapses of its advocate and that government litigations should be given more latitude in terms of time extensions. The court found that the bank's delay in obtaining leave was not unexplained, as the bank had been communicating with its previous advocate continuously since 1984 and had engaged new advocates in 1991. The court also noted that the bank was a government undertaking. 3. The court allowed the bank to amend the plaint to reflect the change of name of the first defendant and the merger of the plaintiff bank with Canara Bank. However, the court disallowed the amendment seeking to make allegations against the substituted defendant in place of the original defendant.
Final Decision: The court granted leave under Clause 12 of the Letters Patent, condoned the delay in obtaining leave, and allowed the bank to amend the plaint and substitute the deceased defendant. The court also restrained the bank from making any application or instituting any proceedings against the substituted defendant for a period of two weeks.
( 1 ) THIS is an application made by way of Master's Summons on behalf of the named plaintiff in the suit. However, it is today an undeniable fact that the Lakshmi Commercial Bank Ltd. has merged into Canara Bank which is a nationalised Undertaking.
( 2 ) THERE are several prayers in the Summons. The suit was originally presented in 1984 without first obtaining leave under Clause 12. The said leave is sought for today for the purpose of regularising the suit. The third defendant has died during these years and another person is sought to be substituted in his place. There has been a change of name of the first defendant, as named in the plaint and amendments are sought in that regard also.
( 3 ) THE point of primary importance is whether leave under Clause 12 of the Letters Patent can, in law, be granted today.
( 4 ) UNDER Clause 12 of the Letters Patent it has been clearly provided that this Court shall not receive, try or determine suits in case such leave is necessary in terms of the Clause, unless such leave has been first obtained.
( 5 ) IN the absence of a leave, therefore, being first obtained, this Court and no Judge of this Court can receive, try or determine a suit.
( 6 ) MR. Girish Gupta appearing on behalf of the first defendant has most helpfully relied upon the case of Kshitish Kumar Som v. State of Bihar, reported in 91 Cal LJ 279 : (AIR 1953 Cal 639 ). It was a judgment of Justice D. N. Sinha, sitting singly and His Lordship, drawing upon His Lordship's experience on the Original Side as well as upon decided authorities, laid down the following five propositions with regard to grant of leave under Clause 12. The said five propositions are binding upon ma and the same are set down below :"1. Where leave under clause 12 of the Letters Patent is necessary, the granting of such leave is the condition precedent to the Court having jurisdiction to entertain the suit. 2. Therefore, such leave is to be obtained at the time of the institution of the suit. In the Original Side of this High Court, the practice is to present the plaint before the Master who places it before a judge of this Court for granting the requisite leave. It does not mean, however, that such leave is granted after the institution of the suit. For the purpose of limitation the date of the presentation of the plaint may be relevant but the leave when granted is nevertheless leave granted prior to the institution of the suit. 3. Where by amendment of a plaint, a cause of action is altered or a new cause of action added, it is not a new suit but the old suit in a new form. In such a case, no amendment can be ordered if it requires leave to be granted under clause 12 of the Lettes Patent, at the time of the amendment. 4. It follows that leave under clause 12 of the Letters Patent cannot be granted in such a case, at any stage after the institution of the original suit. 5. But where a new party is added, the suit as regards the added party must be deemed to have been commenced on the date when he was so added. Consequently, if the cause of action against the added party requires leave under clause 12 of the Letters Patent it is open to the Court to grant such leave, if asked for at the time of the amendment. In fact, if such leave has not been asked for or obtained in such a case, the court has no jurisdiction to entertain the suit against such an added defendant. "
( 7 ) IN second proposition it would be found that his Lordship clearly contemplated the possibility of a suit being instituted on a particular date for the purpose of limitation and the suit being receivable by this Court on another date, the same being subsequent to grant of leave under Clause 12. The delay that His Lordship contemplated as between these two points of time, was the delay that would occur for the putting up of the plaint by the learned Master before the Interlocutory Bench. The delay probably would never be even of a day. But what is import ant for our purp
