The main legal point established in the judgment is that an amendment to the pleadings can be allowed even after the statutory period of limitation if it does not constitute a new cause of action, and the delay in moving the application for amendment should be decided by reference to the stage to which the hearing in the suit has proceeded.

K. Govindarajan, J.

1. Theabove appeal is filed by the appellant challenging the order passed in Application No.2402 of 2000 in C.S.No.126 of 1990, dated 29.9.2000.

2. Theappellant filed a suit in C.S.No.126 of 1990 seeking certain reliefs against the respondent. Pending suit, the appellant filed Application No.2402 of 2000 to amend the plaint on the basis that the bank guarantee was invoked and a sum of Rs.11,29,250 was encashed by the respondent and so the appellant is entitled to recover the said amount from the respondent.

3. Thesaid Application was contested by the respondent.

4. The learned Judge accepting the case of the respondent rejected the Application. Hence the above appeal.

5. Learned Counsel appearing for the appellant has submitted that the learned Judge is not correct in rejecting the application on the ground of delay. He further submitted that the finding of the learned Judge that the Application for amendment file deliberately after the period of limitation for refund of the amount cannot be sustained. He relied on certain decisions in support of his submission.

6. Learned Senior Counsel appearing for the respondent submitted that since the relief sought for by way of amendment is barred by limitation, the learned Judge as correct in dismissing the Application. According to him, the bank guarantee was invoked even in 1990, though it was after the filing of the suit. But the appellant filed the Application in 2000 seeking an amendment to include a prayer for recovery of the said amount and so it is hopelessly barred by limitation.

7. The appellant/plaintiff filed the suit seeking as many as 10 reliefs. In prayer (e), which is relevant for disposing of the appeal, the appellant sought for the following relief:-

“ (e) For a declaration that in any event the Bank Guarantee by Indian Bank and dated 7.7.1989 and Rs 11,29,250 is incapable of being enforceable or encashable.”

The Appellant/plaintiff also prayed to prayer as follows:-

“for a consequential injunction restraining the defendant from enforcing or encasing the Bank Guarantee dated 7.7.1989 for Rs. 11, 29,250.”

8. It is not in dispute that the said Bank Guarantee dated 7.7.1989 given by the appellant was revoked by the respondent only after filing the suit. The appellant has filed the application for amendment praying for a direction to the respondent herein to pay the said sum of Rs.11,29,250 together with interest therein at the rate of 24% P.A.., form the date of encashment till the date of payment.

9. Though the appellant sought for the relief of injunction restraining the respondent from invoking the bank guarantee, the same was not granted, and so the respondent invoked the same. As mentioned already, the appellant-firm had sought for declaratory relief regarding bank guarantee furnished by them. The amendment now sought for is only a consequential prayer. The learned Judge dismissed the application on the grounds that the appellant came to the Court belatedly and the claim made by the way of amendment is barred by limitation.

10. Such a finding of the learned Judge is contrary to the decision of the Apex court in Sampath Kumar v. Ayyakannu , 2002 AIR SCW 2925. The Hon’ble Judges considered the correctness of the order passed by the Learned Judge of this Court can rejection of the Application for amendment on the ground of delay. In the said case, the plaintiff filed on Application for amendment proposing a cause of action which had arisen to the plaintiff during the pendency of the suit. While considering the Appeal preferred on the said order of this Court, the Apex Court held as follows:-

“ Order 6, Rule 17 of the CPC confers jurisdiction on the Court to allow either party to alter or amend his pleadings at any stage of the proceedings and on such terms as may be just. Such amendment as are directed towards putting-fort and seeking determination of the real questions in controversy between the parties shall be permitted to be