Amendments to pleadings under O 20 of ROC 2012 can be allowed if they do not cause injustice, even if filed late during trial.

Introduction

[1] There are 2 applications before the Court in Enclosure ("Encl") 139 and Encl 141 filed by the 1st and 2nd Defendant respectively to amend para 11 and 21 of their respective Defence. Both applications filed pursuant to O 20 r 5(1) and or O 92(4) of the Rules 2012 (" ROC 2012") raised identical amendments. As the issues are the same regarding the identical amendments, both applications were heard together.

[2] I had allowed both applications, with costs to the Plaintiff on 7.02.2023 and given broad reasons for my decision. This judgment contains the full reasons for my decisions.

Background facts

[3] The Plaintiff granted a short-term loan of INR552,400,000.00 ("the loan") to Gouttephone Technology Private Limited ("GTPL"). GTPL assigned all its rights and benefits under a Promissory Note ("PN") in the value of USD10,000,000.00 to the Plaintiff as security for the loan.

[4] Pursuant to the PN, the 1st Defendant promised inter alia to pay the holder of the PN the sum of USD10,000,000.00 on the maturity date of the PN, which was on 19 November 2018.

[5] The PN is underwritten/insured by the 2nd Defendant pursuant to a credit default risk insurance Policy dated 20 November 2017 issued by the 2nd Defendant ("AIL Policy"). The AIL Policy inter alia provided that the 2nd Defendant agreed to indemnify the plaintiff against losses arising from any default of the PN.

[6] GTPL defaulted on the loan. On 18 October 2018, the Plaintiff issued a notice for event of default to GTPL. GTPL failed to remedy the default and requested that the Plaintiff to redeem the PN.

[7] On 10 November 2018, the Plaintiff carried out the process for redemption of the PN. The 1st Defendant failed to make payment to the Plaintiff in accordance with the PN.

[8] Arising from the 1st Defendant's default, on 22 November 2018, the Plaintiff lodged its claim with the 2nd Defendant under the AIL Policy to recover the losses it incurred arising from the 1st Defendant's default in the sum of INR572,457,085.00 ("Insurance Claim"). The 2nd Defendant did not pay the Plaintiff.

[9] The 2nd Defendant and the Plaintiff executed an Amicable Settlement Agreement dated 22 March 2019 "settlement agreement"). The 2nd Defendant entered into the settlement agreement in its purported capacity as the authorised representative of the 1st Defendant. In accordance with the settlement agreement, the 1st Defendant was to pay the Plaintiff INR6,250,000.00 on or before 31 March 2019, and INR618,750,000.00 on or before 31 May 2019.

[10] Pursuant to the settlement agreement, on 2 April 2019, the 1st Defendant paid the sum of INR6,250,000.00 to the Plaintiff. The balance sum of INR618,750,000.00 was not paid.

[11] Hence, the Plaintiff filed this action to claim the following:

(i) from the 1st Defendant and the 2nd Defendant jointly and severally, the balance settlement sum of INR618,750,000.00;

(ii) alternatively, as against the 2nd Defendant, the sum of INR572,457,085.00 being the Plaintiff's insurance Claim under the AIL Policy.

[12] Trial of the present action commenced on 12 July 2022, and was continued on 13 July 2022, 3 October 2022 and 4 October 2022, by which time PW1 had finished giving evidence, and PW2 was in the midst of giving evidence and was to continue her evidence on the next trial dates of 12 October 2022, 13 October 2022 and 17 October 2022.

[13] On 11 October 2022, Encl 139 was filed by the 1st Defendant. On the same day, the 2nd Defendant's solicitors wrote vide Encl 137 to adjourn the trial fixed for 12 October 2022, 13 October 2022 and 17 October 2022 as learned counsel Mr. Trevor De Silva was unwell and had a voice problem. The Plaintiff's solicitors responded vide Encl 138 to the said letter within