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1986 Supreme(Cal) 218
High Court Of Calcutta
BIMAL CHANDRA BASAK, S. K. HAZARI
DENA BANK - Appellant
Versus
BERTRAM SCOTT (INDIA) LTD. - Respondent
Appeal 37 Of 1984
Decided On : 05/21/1986
A court cannot amend a decree in such a way as to create a new agreement between the parties.
Headnote:
CIVIL PROCEDURE CODE - ORDER 15 RULE 2 - AMENDMENT OF DECREE - MISTAKE IN SCHEDULE OF MORTGAGE - JURISDICTION OF COURT - APPEALABILITY OF ORDER - POWER OF COURT TO CREATE NEW AGREEMENT BETWEEN PARTIES - PUBLIC FINANCIAL INSTITUTION - LATCHES AND NEGLIGENCE - LOSS OF PUBLIC MONEY.
Fact of the Case:
The plaintiff bank filed a suit against the defendant for recovery of a loan secured by a mortgage of certain properties. The schedule to the mortgage deed, however, did not include all the properties covered by the first mortgage. The plaintiff bank discovered the mistake after the preliminary decree was passed and filed an application for amendment of the decree. The trial court dismissed the application.
Finding of the Court:
The court held that the order passed by the trial court was not appealable. The court also held that the mistake in the schedule of the mortgage deed was not a mere mistake of description, but a mistake in the agreement itself. The court further held that it did not have the power to amend the decree in such a way as to create a new agreement between the parties.
Issues: 1. Whether the order passed by the trial court was appealable? 2. Whether the mistake in the schedule of the mortgage deed was a mere mistake of description or a mistake in the agreement itself? 3. Whether the court had the power to amend the decree in such a way as to create a new agreement between the parties?
Ratio Decidendi: 1. An order passed under Section 151 read with Section 152 of the Code of Civil Procedure is not an appealable order. 2. A mistake in the schedule of a mortgage deed, which is not a mere mistake of description, but a mistake in the agreement itself, cannot be amended under Section 151 of the Code of Civil Procedure. 3. The court does not have the power to amend a decree in such a way as to create a new agreement between the parties.
Final Decision: The appeal was dismissed with costs.
( 1 ) THIS appeal arises out of an order passed by the learned Trial Judge dismissing an application filed by the plaintiff/appellant for amendment of the decree D/-21st Feb. , 1979 passed in the Suit No. 276 of 1978.
( 2 ) THE facts of this case are peculiar and it shows how a nationalised bank in our country functions while granting loans. We shall set out such facts from the application of the appellant-plaintiffs themselves.
( 3 ) VARIOUS properties belonging to the defendant were mortgaged in favour of the West Bengal Financial Corporation of India (hereinafter referred to as the said Corporation) to secure a loan by a registered indenture of mortgage on 9th Feb. 1972. The properties mortgaged were described in the several schedules to the said deed of mortgage. Thereafter with the object of creating a second mortgage in favour of the petitioner, an indenture of mortgage was created on 13th Feb. 1975. It is stated that this was done with the object of creating second mortgage in favour of the petitioner in respect of very same properties over which the said Corporation had first mortgage under the said Indenture D/-Feb. 9, 1972 and in this context reference is made to a Board Resolution D/-10th Oct. 1974 and Cl. 3 of the recital of the agreement D/-13th Feb. 1975. It is stated that the parties all along had the intention that all the properties covered by the first mortgage would be the subject matter of the second mortgage. What actually happened was that in spite of such alleged object and intention, the schedule to the second mortgage did not include all the properties contained in the first mortgage. The plaintiff bank entered into a loan transaction involving several lakhs of rupees but they did not bother to check up the relevant schedule to the document. This "mistake" remained undetected even when the suit was filed against the defendant with the following prayers :"a) A decree for Rs. 1,18,82,286. 77 p. b) Interim interest and interest on judgement at the current Nationalised Bank lending rate of 15% per annum. c) A decree for the sale of the hypothecation mentioned in Annexure 'b' to the plaint with direction for the appropriation of the net sale proceeds thereof in pro tanto satisfaction of the dues of the plaintiff; d) A decree for the sale of the pledged goods mentioned in Annexure 'f' to the plaint with direction of appropriation of net sale proceeds thereof in pro tanto satisfaction of the dues of the plaintiff; e) A decree under O. XXXIV, R. 4 of the Civil P. C. in form No. 5a of Appendix 'd' in the first Schedule thereto relating to the mortgage security mentioned in Annexure 'm' to the plaint".
( 4 ) THEY were asking for relief in respect of the properties mentioned in the schedule and even at that point of time, no one on behalf of the bank detected the "mistake" in the schedule. The suit was allowed to be filed in that manner on 2nd of May, 1978. On 21st Feb. 1979 a preliminary decree was passed in the said suit. No one discovered such "mistake" even at that point of time. It is stated that such mistake was discovered on 21st March, 1981, and on 21st April, 1981 this application for amendment was made. By an order D/-14th Sep. 1983 the application was dismissed. It took two years after the preliminary decree for the appellant-plaintiff to find out such "mistake". It is stated that such "mistake'' was discovered on Mar. , 21, 1981 at the meeting of the Official Liquidator held on that date. Meanwhile, the plaintiff bank has realised a sum of Rs. 59,79,000/- on the basis of the decree and it is stated that the present dues of the petitioner exceeds Rs. 1,40,00,000/ -.
( 5 ) IN support of this appeal on the question of the jurisdiction of the Court to pass such an order, reliance was placed on a decision of this Court in the case of Lakshmi Nath Sarma v. Ghanakanti Kalitani reported in ILR (1951) 2 Cal 407 wherein there was an application under Ss. 151 and 152 of the Civil P.
