The amendment application was dismissed as it was found to be mala fide, aiming to introduce new pleas and withdraw previous admissions, lacking due diligence and justification.

JUDGMENT

: 16th April, 2025

THE APPELLATE TRIBUNAL :

1. Instant appeal is preferred against order dated 13.9.2024, passed by Learned DRT-III, Kolkata, in I.A. 1953 of 2024 in O.A. 1194 of 2016 (HDFC Bank Limited -vs- M/s. EMTA Coal Limited) whereby I.A. 1953 of 2024 for amendment of written statement was rejected. Feeling aggrieved, Defendants therein preferred the appeal.

2. O.A. 1194 of 2016 was filed by the Secured Creditor against Appellants herein for issuance of certificate for an amount of Rs.35,23,90,143.50 as on 31.08.2016 together with future interest and charges on and from 1.9.2016.

3. There are certain admitted facts. O.A. No. 1194 of 2016 was filed by the Respondent Bank on 24.11.2016. Written statement was filed by the Defendants/Appellants on 15.03.2017. Thereafter, Respondent Bank was required to file the evidence which was not filed. It was filed on 14.02.2020. On 05.04.2021 direction was issued to the Respondent Bank to serve copy of the evidence upon Defendants/Appellants and affidavit-of-service be filed. Matter was listed on 19.05.2021. Thereafter, on 08.12.2021 Defendants/Appellants sought time to file counter evidence which was allowed subject to payment of Rs.50,000.00 as costs and matter was listed on 16.12.2021.

4. Pending proceedings, an order was passed by the Learned DRT closing opportunity for filing counter affidavit by the Respondents herein. Order was challenged in Appeal No. 24 of 2023 before DRAT, Kolkata. Appeal was allowed and right to file counter evidence was allowed subject to payment of Rs.2,50,000.00, as costs, vide order dated 5.10.2023. Time upto 9th October, 2023 was allowed to deposit the costs and time upto 12th October, 2023 was allowed to file counter evidence. Feeling aggrieved by the order, Defendants, in the O.A., preferred C.O. 3742 of 2023 which was decided by the Hon’ble Calcutta High Court on 13.5.2024 allowing time to the Appellants to file counter evidence by 22^nd May, 2024 subject to payment of Rs.3,50.000.00 to HDFC Bank. Further Hon’ble High Court directed DRT-III to proceed in accordance with law and make endeavour to complete the proceedings by 31^st July, 2024. It appears that thereafter Respondents herein preferred I.A. 1953 of 2024 for amendment of the written statement which was dismissed by the Learned DRT holding that new facts are being introduced and the proposed amendment will change the nature and character of the case. It is further held that the amendment application is filed at a belated stage for the purpose of dragging and delay the proceedings. It was further held that there was no leave granted by the Hon’ble High Court to file written statement.

5. I have heard the Learned Counsel for the parties and perused the record.

6. It is contended by the Learned Counsel for Appellants that the written statement was filed on 15.3.2017. Amendment application is moved on the ground that pending adjudication of the O.A. when the Respondents, at the time of preparation of the affidavit of evidence consulted a Learned Senior Advocate, it transpired that the petitioners did not plead certain material facts which are essential for effective adjudication. Further Respondents had not properly instructed the Advocate preparing the written statement as at the time of drafting representative of the Defendant No. 1 Company, who was handling the transaction with the Bank, was unavailable. Another ground was taken that at the time of preparation of the written statement all the documents could not be made available to the Advocate so inadequate written statement was prepared. The present Advocate of the Appellants conducting the matter, advised to prefer an amendment application. It is further stated that there is no d