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Himachal Pradesh High Court
DEVINDER GUPTA AND LOKESHWAR SINGH PANTA, JJ.
M/s. J. S. Tins Fabricators and others - Appellant
Versus
U.Co. Bank - Respondents
L.P.A. No. 6 of 1992
Decided On : 5 January 1993
AMENDMENT OF WRITTEN STATEMENT - ORDER 6, RULE 17, C.P.C. - INCONSISTENT PLEAS - ADMISSIONS - SICK UNIT - CIRCULAR OF RESERVE BANK OF INDIA - VOID AGREEMENT - INTEREST - SECTION 12 OF THE CONSTITUTION OF INDIA - ARTICLE 12 - STATE WITHIN THE AMBIT OF ARTICLE 12 - DISCRIMINATION - WAIVER OF LOAN AND INTEREST - SUMMARY
Fact of the Case:
The defendants filed an application under Order 6, Rule 17 of the Code of Civil Procedure seeking permission to amend their written statement. The trial court dismissed the application, holding that the proposed amendments would amount to changing the pleas of admission into a plea of denial and would also amount to allowing the defendants to take inconsistent pleas. The defendants appealed the trial court's order.
Finding of the Court:
The High Court allowed the appeal, set aside the trial court's order, and permitted the defendants to amend their written statement. The court held that the proposed amendments would not amount to taking up a totally inconsistent or different stand, and that they would not have the effect of totally displacing the plaintiff's case or causing any prejudice. The court also held that the defendant's plea that it was a sick unit and that interest could not be charged during the period of sickness was not such a plea that would have the effect of totally displacing the plaintiff's case.
Issues: 1. Whether the proposed amendments to the written statement would amount to taking up a totally inconsistent or different stand? 2. Whether the proposed amendments would have the effect of totally displacing the plaintiff's case or causing any prejudice? 3. Whether the defendant's plea that it was a sick unit and that interest could not be charged during the period of sickness was such a plea that would have the effect of totally displacing the plaintiff's case?
Ratio Decidendi: 1. The court held that the proposed amendments would not amount to taking up a totally inconsistent or different stand because the defendants had already admitted the execution of the loan documents and agreed to pay interest, and the proposed amendments only sought to add a plea that the contract was void for the reasons that it ran counter to the circulars issued by the Reserve Bank of India. 2. The court held that the proposed amendments would not have the effect of totally displacing the plaintiff's case or causing any prejudice because evidence had not yet been led and issues had not yet been framed. 3. The court held that the defendant's plea that it was a sick unit and that interest could not be charged during the period of sickness was not such a plea that would have the effect of totally displacing the plaintiff's case because the defendant was not seeking total writing off of the loan amount, but only the benefit, for some period during which the unit remained a sick industry, if permissible under law.
Final Decision: The High Court allowed the appeal, set aside the trial court's order, and permitted the defendants to amend their written statement.
DEVINDER GUPTA, J. :- The order passed on 30th April, 1992 by the learned single Judge of this Court in OMP No. 398/91 is under challenge in this appeal at the behest of defendants.
2. On 24th February, 1988 the plaintiff-bank filed suit for recovery of Rupees 2,46,116.25 paise against the defendants alleging that at the request of defendants certain loan facilities were provided to them, which they availed of and despite demands failed to liquidate their liability. A decree for the aforesaid amount along with future interest has been claimed in the suit.
3. The suit was resisted by the defendants, who filed their written statement on 17th May, 1989. While admitting the fact that loan facility was availed of by them, it was averred that the rate of interest agreed to was to the tune of 151/2% per annum and not 171/2% per annum because as per the agreement the interest payable was to be as per the norms of the Reserve Bank of India issued regarding the Small Scale Industrial Units from time to time. The rate of interest as per the Reserve Bank of India guidelines was 151/2% per annum at that time. It was also averred that the defendants became irregular in repayment of loan in view of the situation in Punjab and due to non-payment of the defendants dues by the parties to whom goods have been supplied by the defendants. Defendants also stated that they
are still willing and ready to make the payments in case the plaintiff comes forward with clean hands with proper calculations of interest and with a demand of real amount due from the defendants. It was claimed that the suit was not within the period of limitation and to bring it within limitation the plaintiff-bank had used certain blank papers, which had been got signed in bulk.
4. OMP 441/89 was moved by the plain-off on 6th November, 1989 under Order 12, rule 6 of the Code of Civil Procedure claiming immediate decree in part, on the basis of admissions alleged to have been made by the defendants. Reply to this application was filed by the defendants. This application was dismissed as infructuous on 5th June, 1990 since the suit on that day was dismissed in default.
5. On 30th July, 1990 it was observed by the Court that since the dispute between the parties appeared to be limited, only with respect to charging of interest at the rate of 2%, there was every possibility of suit being compromised. Consequently, defendant No. 2 was directed to remain present in Court.
6. On 14th March, 1991 OMP 63/91 was moved by the plaintiff under Order 12, Rule 6 of the Code of Civil Procedure praying that decree on the basis of admissions made by the defendants in the written statement be passed. On 26-3-1991, three weeks time was allowed to defendants to file reply to this application. Case was directed to be listed on 18th April, 1991 when defendants were to apprise the Court whether they were ready and willing to make the payment of loan amount in instalments.
7. Defendants thereafter sought adjournments on 17th July, 1991 the Court recorded the statements of counsel for parties that it has not been possible to settle the matter amicably outside the Court. Plaintiff-bank was directed to place on record the statement of account calculating the amount due from the defendants on the basis of 151/2% interest at quarterly rests. Such statement was placed on record and on 5th August, 1991 one weeks time was allowed to defendants to verify the correctness of that statement.
8. On 12th August, 1991 an application under Order 6, Rule 17 of the Code was moved by the defendants seeking permission to amend the written statement. This OMP 398/91 has been dismissed by the learned single Judge. Amendment sought for has been refused. It is this order, which is under challenge in this appeal.
9. The reasons which prevailed with the learned single Judge declining to grant the requisite permission for amending the written statement were that it will have the effect of altering the defence already made and wo
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