JUDGMENT

Dated this the 16th day of February, 2024 The petitioner, who is the defendant in T.A.No.1247 of 2016 on the file of the Debts Recovery Tribunal-II, Ernakulam, has filed this OP(DRT) seeking to set aside order dated 14.09.2023 in I.A No.878 of 2023 in TA No.1247 of 2016 on the file of the Debts Recovery Tribunal-II, Ernakulam.

2. By order dated 14.09.2023, the Debts Recovery Tribunal-II, Ernakulam, rejected the petitioner’s application I.A.No.878 of 2023 for amendment of the written statement so as to include a counter claim. The Tribunal found that the written statement was filed in the year 2006 and the additional written statement was filed in the year 2015. The petitioner has filed the application after lapse of several years, without assigning any valid ground for such inordinate delay in filing the counter claim.

3. Counsel appearing for the petitioner would submit that by I.A.No.878 of 2023, the petitioner proposed to include certain counter claims. In fact, the petitioner had earlier approached this Court filing W.P.(C) No.14771 of 2007, which was disposed of on 29.05.2007 as per Ext.P3 judgment. In the said writ petition the petitioner raised her grievance that the respondent-Bank has, without authorisation, made payment from the loan account of the petitioner to suppliers of raw materials / goods to the petitioner’s business unit. If the Bank has made payment without proper authorisation, it is for the Bank to account for the same. This Court noted that DRT has rejected the petitioner’s application only because the petitioner has not furnished details. Therefore, this Court disposed of the writ petition directing the respondent-Bank to submit entire loan files before the Debts Recovery Tribunal for perusal.

4. In spite of the directions given in Ext.P3, the Bank refused to make available the records. Even the Debts Recovery Tribunal passed an order for production of those records only in the year 2023. The respondent filed an affidavit disclosing certain information. The petitioner could not have made a proper counter claim without perusing the files, which were directed to be produced by this Court as per Ext.P3 judgment. In these circumstances, the delay on the part of the petitioner for filing amendment application, is well justified.

5. The Counsel for the petitioner relied on the judgment of the Hon’ble Apex Court in Ashok Kumar Kalra v. Wing Cdr. Surendra Agnihotri and others [2020 (2) SCC 394], in which it was held that a claim can be filed if two conditions are met; first, its cause of action complies with Order VIII Rule 6(A) of the Code of Civil Procedure and second, it is filed within the period specified under the Limitation Act. In view of the judgment of the Hon’ble Apex Court, the Debts Recovery Tribunal ought to have permitted amendment to the written statement.

6. The Counsel for the petitioner also relied on the judgment of the Apex Court in State of Bihar and others v.

Modern Tent House and another; [(2017) 8 SCC 567], wherein the Hon’ble Apex Court has held that when the amendment does not introduce any new defence compared to what has been originally pleaded in the written statement, taking into consideration the requirement to avoid multiplicity of proceedings, such amendments can be allowed. The interest of justice demands that the petitioner should be allowed to amend the written statement, contended the Counsel for the petitioner.

7. Standing Counsel entered appearance on behalf of the respondent and resisted the OP(DRT). The Standing Counsel pointed out that the credit facility was given to the petitioner in the year 2003. The loan account was declared as NPA in the year 2005. The Bank filed OA No.6 of 2006 claiming Rs.13,11,736/- on 27.12.2005. Proof affidavit was filed on 21.02.2006 and written statement was filed on

07.05.2006.

8. Thereafter, a counter proof affidavit was filed on

12.09.2006. In 2017, amended proof affidavit was filed. The petitioner also filed counter proof affidavit on