A claim for adjustment of the value of the difference in the stock indicated in the original plaint and the amended one is not a set-off or counter-claim, but an adjustment.

R. N. MISRA, J.

( 1 ) THE third defendant in T. M. S. 265 of 1969 in the Court of the Subordinate judge of Cuttack is the petitioner. Plaintiff-opposite party No. 1 has filed the suit asking for recovery of a sum of Rs. 10,86,331. 01 paise from defendants 1, 2 and 4 on the basis of a cash credit and/or overdraft facility under which the defendant No. 1-Company had been allowed to draw money from the bank. Initially the limit was for Rs. 3 lakhs which from time to time was extended and in June, 1969, the limit was fixed at Rs. 10 lakhs. While the defendant No. 1company, defendants 2 and 4 are two of its directors who according to the plaintiff had made themselves liable for the entire loan. Plaintiff also prayed for a decree up to Rs. 9 lakhs within the aforesaid amount against defendants 3 and 5--being two other directors of the defendant No. 1-Company on the basis of guarantees.

( 2 ) THREE separate written statements were filed one by defendant No. 2, another by defendants 3 and 5 together and the third one by defendant No. 4. The plaint was amended and paras 59-A and 59-B were new allegations made. Defendants 2 and 3 filed two separate additional written statements with reference to the amended plaint. In these two paragraphs, plaintiff pleaded thus:--

"59-A. That the defendant company from time to time pledged Iron and steel goods to the plaintiff-Bank which were kept in the Godown of the defendant-Company within its premises under the lock and key of the plaintiff-Bank. When the defendants pledged such goods they used to send signed challans with a declaration about the quantity and the face value of such goods to the Bank. The latter in good faith used to accept the same and accordingly enter the quantity and value of such goods in the Bank's godown ledger as per the declaration given by the defendants, without physical verification or weighment of the said goods. As requisite machinery and equipments for weighment of these heavy iron and steel materials were not provided by the defendant-Company or otherwise available at the godown, it was not possible to physically weigh the pledged stock and figures regarding the weight of the pledged goods verified by the defendant-Company in their challans and declarations used to be accepted by the plaintiff as a matter of practice and necessary entries regarding weight and face value used to be made in the Bank's ledger on the basis of the defendant's challan and declaration. 59-B. That at no point of time the weight or quantity of pledged goods were ascertained by the Bank until they were weighed for purpose of sale under the orders of this Court when for the first time it came to the knowledge of the plaintiff that the actual stock in the godown was 49. 504 M. Ts. and not 532. 575 tons as stated in the schedule 'dd' of the plaint. "

In prayer (d), the plaintiff had asked for the following relief:-

"a declaration that all Book debts, goods and movable assets mentioned in Schedule DD and X-1 and X-2 hereof are charged and/or pledged and/or hypothecated in favour of the plaintiff for the repayment of the said sum of Rs. 10,86,331. 01 by sale thereof, and the sale proceeds of the pledged goods in deposit in Bank in the name of Subordinate Judge, Cuttack, to be paid to the plaintiff in part satisfaction of the decretal dues. "

Defendant No. 3 in his additional written statement denied the alleged practice in para 59-A of the plaint and disputed the assertion that the stock was about one-tenth of what had been disclosed in the books. In para 3 of such additional written statement, he pleaded:-

"that the prayer made for relief on the above amendment at para (d)of the prayer should summarily be rejected. Instead, it is necessary to consider that the present market value of these steel materials are more than Rs. 2,200 per M. T. and the difference contemplated in the pledged stock would have easily fetched more than Rs. 15,00,000. Even this difference in pledged stock would have fetched