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2017 Supreme(HP) 458
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
SANDEEP SHARMA, J.
The Kangra Central Cooperative Bank - Petitioner
Versus
Prabha Devi & others - Respondents
CMPMO No.346 of 2016
Decided on : 29-05-2017
Advocate Appeared:
For the Petitioner:Mr. Umesh Kanwar, Advocate
For the Respondents:Mr. Karan Singh Kanwar, Advocate
The main legal point established in the judgment is the importance of allowing amendments to pleadings to determine the real controversy between the parties and to avoid delay in the disposal of the suit, unless serious injustice or irreparable loss is caused to the other party.
Headnote:
Amendment - Civil Procedure - Order 6 Rule 17 CPC - [Order 6 Rule 17 CPC] - The court allowed the amendment of the plaint to correct a clerical error, emphasizing the need to determine the real controversy between the parties and the importance of avoiding delay in the disposal of the suit.
Fact of the Case:
The plaintiff, Kangra Central Cooperative Bank, filed a civil suit for the recovery of a loan against the defendants. During the trial, the plaintiff sought to amend the plaint to correct a clerical error regarding the type of loan. The trial court dismissed the application for amendment, stating that it was filed after the commencement of the trial and lacked sufficient pleadings.
Finding of the Court:
The court found that the plaintiff's intention was to recover a loan amount allegedly advanced to the defendants for the purchase of a vehicle, not for agricultural pursuits. The court emphasized the need to determine the real controversy between the parties and the importance of avoiding delay in the disposal of the suit.
Issues: The main issue was whether the court should allow the amendment of the plaint to correct a clerical error after the commencement of the trial.
Ratio Decidendi: The court held that the amendment should be allowed, as it was necessary to determine the real controversy between the parties and to avoid delay in the disposal of the suit. The court cited legal principles emphasizing the liberal granting of amendments unless serious injustice or irreparable loss is caused to the other party.
Final Decision: The petition was allowed, and the impugned order was quashed and set aside. The plaintiff was directed to pay an amount of Rs. 2500/- to the defendants on account of litigation charges within a specified period.
Sandeep Sharma, J.
1. Petitioner, being aggrieved and dissatisfied with the order(Annexure P-3), dated 4th May, 2016, passed by learned Civil Judge (Junior Division) Anni, District Kullu, H.P., in Case No. 29-I of 2012, whereby application under Order 6 Rule 17 CPC having been filed by the petitioner (hereinafter referred to as the plaintiff) for amendment of plaint has been dismissed, has approached this Court seeking therein following reliefs:-
“That this petition may kindly be allowed and the impugned order dated 4.5.2016 (Annexure P-3) passed by learned Civil Judge(Jr. Division), Anni, District Kullu, H.P. in CS No.29-I of 2012 titled as The Kangra Central Coop. Bank Ltd. Vs. Smt. Prabha Devi & others may be quashed and setaside, and amended plaint be directed to be brought on record for all intents and purposes, in interest of justice.”
2. Briefly stated facts, as emerged from the record are that plaintiff i.e. Kangra Central Cooperative Bank, filed civil suit in the Court of learned Civil Judge (Jr. Division) Anni, District Kullu, H.P., against the respondents (hereinafter referred to as the defendants) for recovery of loan. Defendants, pursuant to the notices issued to them, filed written statement specifically raising therein objections with regard to loan, if any, taken by them, as alleged in the plaint having been filed by the plaintiff. During the pendency of suit, plaintiff by way of application filed under Order 6 Rule 17 CPC sought amendment of the plaint. It would be profitable to reproduce averments contained in the application herein:-
1. That the plaintiff has filed a suit for the recovery of loan against the defendants before the Hon’ble Court.
2. That the defendants have filed a written statement on dated 17.6.2014 and no specific objections were raised pertaining to kind of loan taken. The defendants have pleaded denial of contents of a plaint for want of knowledge which correspond to admission of the contents of paras of plain.
3. That the plaintiff discovered during the plaintiff’s evidence an clerical error pertaining to kind of loan in para 2 to 5 &7.
4. That the plaintiff has filed documents pertaining to vehicle loan alongwith the plaint. But due to clerical error the word agriculture instead of vehicle has been incorporated in para 2 to 5 & 7.
5. That the defendants have not pressed for the addition of new issue with regard to kind of loan advanced to defendant No.1 and now the suit is fixed for DWS on 9.12.2014.
6. That the plaintiff inspite of due diligence, could not discover clerical error herein before.
7. That the required amendment/correction neither changes the nature of suit nor changes the real controversy between the parties in a suit.
8. That the amendment/correction will not do injustice to the adversary and it is necessary for proper adjudication of the dispute between the parties;
9. That the plaint required to be amended/corrected para-wise as under:
Para-2:- That the defendant No.1 approached the plaintiff at its branch at Duraha for the grant of motor vehicle/personal loan and cash credit facility to the extent of Rs.4,24,000/-.
3. That on the request of the defendant No.1 the plaintiff advanced Rs.4, 24,000/- as vehicle loan against agreement dated 5.10.2007.
4. That after the availment of vehicle loan and demand cash credit facility against the guarantee of defendants No.2 & 3, the defendants made they jointly and severally liable for the amount advanced together with interest to the plaintiff bank.
5. That as per the terms and conditions of the vehicle loan the defendants agreed and made themselves liable to pay the interest @ 11.75% plus 2% from the date of advancement/availment of cash credit limit till the realization of the amount to the plaintiff bank.
6. That the defendant No.1 did not adhere to the repayment schedule of the vehicle loan agreement and cash credit facility as per terms and conditions of the documents. The defendant No.1 was negligent in payment of the installments
