Icici Bank Ltd vs Arvind Pal Singh
2021 Latest Caselaw 1668 Bom

                                                                                WP-11216-19.doc

BDP-SPS


  Bharat

                                IN THE HIGH COURT OF JUDICATURE AT BOMBAY
  D.
  Pandit
 Digitally signed



                                        CIVIL APPELLATE JURISDICTION
 by Bharat D.
 Pandit
 Date: 2021.01.28
 18:21:28 +0530




                                      WRIT PETITION NO. 11216 OF 2019

                    ICICI Bank Ltd.                            ..... Petitioner.
                                                               (Original Defendant)
                         V/s
                    Arvind Pal Singh                           .....Respondent.
                                                               (Original Plaintiff)
                    -----
                    Mr. Mayur Bhojwani a/w Ms. Ravji Mehta i/b Manilal Kher Ambalal &
                    Co. for the Petitioner.
                    Ms. Rupali Akolkar for Respondent No.2.
                    ------
                                       CORAM: NITIN W. SAMBRE, J.

                                         DATE:     JANUARY 25, 2021
                    P.C.:-

                    1]       This Petition is by the Defendant employer in Civil Suit No. 467

of 2014, which is for declaration that there is breach of contract of

service dated 08/01/2004 and as such resignation given by

Respondent is proper and to accept his resignation dated 31/10/2008

by issuing him service certificate. Based on the same, Petitioner filed

its Written Statement and after framing of issues, Respondent/Plaintiff

has completed his evidence. At said stage in December 2017 i.e. after

about three years, Respondent has sought amendment to the pleadings

and sought declaration that he was in service of the Defendant from

02/09/2008 till 09/04/2013 and Defendant be directed to pay him

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salary for the said period. Reinstatement and continuity of service was

also sought with entire back-wages by way of amendment.

2] The said amendment application-Exhibit-33 came to be allowed

by the order impugned dated 15/6/2019. As such, this Petition.

3] The learned Counsel for the Petitioner would urge that suit

initiated by the Respondent/Plaintiff is at an advance stage i.e.

recording of evidence of Plaintiff is already over. According to him,

cause of action as is claimed in the suit is for the years 2008 to 2013.

The suit was initiated in 2016 and the amendment therein is sought in

2017. As such, submissions are, amendment as granted is not

permissible as (a) the amendment changes nature of the suit claim

which has taken the Petitioner by surprise and (b) stage of the suit at

which the same has been moved is not permissible in view of proviso

to Rule 17 of Order 6 of the Civil Procedure Code. In support of the

said submissions, reliance is placed on the following judgments

(i) Pandit Malhari Mahale vs Monika Pandit Mahale and Others reported in (2020) 11 SCC 549

(ii) Vidyabai and Others vs. Padmalatha and Another

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reported in (2009) 2 SCC 409.

4] While countering the aforesaid submissions, learned Counsel for

the Respondent/Plaintiff would urge that the amendment was very

much required so as to decide the real controversy between the

Plaintiff and Defendant. According to her, at the most, by way of

amendment there would be some improvement in the relief claimed,

however, nature of pleadings are not sought to be changed which

would take the Petitioner by surprise. The learned Counsel would

then urge that no prejudice would be caused to the

Petitioner/Defendant because of the order impugned as the Petitioner

will be entitled for consequential amendment.

5]     Considered rival submissions.



6]     From the record it appears that initially suit of Respondent was

for declaration that there is breach of contract of service dated

18/1/2004 which of-course was verymuch prayed before the

amendment was sought. However, the declaration that from

02/09/2008 to 09/04/2013, Plaintiff was in the employment of the

Petitioner/Defendant and as such he is entitled for back-wages and

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reinstatement is sought to be inserted by way of afterthought.

Admittedly trial in the suit has already commenced and in view

thereof, proviso to Rule 17 of Order 6 will be attracted. In the

background of the aforesaid, it can be inferred that Trial Court while

granting amendment has not observed about its satisfaction on the

issue of due diligence of the Respondent/Plaintiff in the matter of

grant of amendment. It is the duty of the Court to decide as to

whether the amendment was necessary so as to decide real

controversy between the parties and whether Plaintiff has established

that in spite of due diligence he could not introduce the amendment

before commencement of trial.

7] In the facts of the case, the pleadings sought to be inserted by

way of amendment was verymuch available to the Plaintiff even

before commencement of the trial and as such test of due diligence is

not satisfied by the Respondent/Plaintiff before the Court below as

envisaged under proviso to Rule 17 of order 6 of the Civil Procedure

Code. As such learned Counsel for the Petitioner was right in inviting

attention of this Court to the judgments in the matter of Pandit

Malhari Mahale and Vidyabai cited supra.

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The case sought to be inserted by way of amendment is

contradictory to the claim initially made in the suit. Initially, in the

suit prayer was for acceptance of resignation whereas through

amendment prayer of reinstatement with back-wages is sought to be

inserted. As such, a new case is sought to be inserted by way of

amendment.

8] As such, Petition stands allowed. The order impugned dated 15 th

June, 2019 passed below Exhibit-33 is hereby set aside. Application-

Exhibit-33 as such stands rejected.

( NITIN W. SAMBRE, J. )