Bombay High Court
Satishkumar S/O Shivnath Kokas vs State Bank Of India, Nagpur ... on 18 July, 2022
Bench: Manish Pitale
54-WP672.18.odt
1/5
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO. 672 OF 2018
Satishkumar Shivnath Kokas
-Vs.-
State Bank of India and another
----------------------------------------------------------------------------------------------------------------------
Office notes, Office Memoranda of
Coram, appearances, Court's orders Court's or Judge's Orders.
or directions and Registrar's orders.
----------------------------------------------------------------------------------------------------------------------
MR.S.S.Sharma, counsel for the petitioner.
Mr.S.N.Kumar, counsel for respondent No.1.
CORAM : MANISH PITALE, J.
DATE : 18.07.2022
Heard the learned counsel appearing for the
parties.
2. By this petition, the petitioner, i.e. the defendant
No.2 has challenged order dated 12/01/2018, passed by
the Court of 9th Joint Civil Judge, Senior Division,
Nagpur, whereby an application at Exhibit-51 filed on
behalf of respondent No.1-Bank seeking permission to
re-examine the witness of respondent No.1, i.e. the
original plaintiff, has been allowed.
3. According to the learned counsel for the
petitioner, there is no pleading on record on the basis of
which respondent No.1 could be permitted to lead
evidence in respect of certain documents. In the absence
of pleadings, such permission ought not to have been
granted. Much emphasis is placed on an attempt on the
part of respondent No.1 to amend it's plaint with
respect to the paragraph pertaining to cause of action,
KHUNTE
54-WP672.18.odt
meeting with failure as the amendment application was
dismissed and the order attained finality. In support of
his contention, the learned counsel for the petitioner
placed reliance on judgment of the Hon'ble Supreme
Court in the case of Syed and Company v. State of
Jammu and Kashmir, reported in 1995 (Supp.4) SCC
422.
4. On the other hand, Mr.S.N.Kumar, learned
counsel appearing for respondent No.1, i.e. the original
plaintiff, submitted that the Court below had correctly
appreciated the material on record to allow the said
application at Exhibit-51. It was submitted that
respondent No.1 in paragraph 6 of the plaint had
specifically referred to extract of loan account,
statement of the original borrower certified by the
Principal Officer of respondent No.1-Bank, which
showed details of the amount disbursed, interest
accrued and deposits made by the borrower. It was
submitted that the said statement was placed on record
along with the plaint, which also specifically contained
an entry dated 23/10/2007, pertaining to cash
payment. It was further submitted that the Court below
had granted permission to respondent No.1 to place on
record receipt dated 23/10/2007 and a revival letter
and that such an order granting permission had already
attained finality, in the absence of challenge raised
thereto on behalf of the petitioner or the original
borrower. On this basis, it was submitted that no
interference is warranted in the impugned order.
KHUNTE
54-WP672.18.odt
5. This Court has considered the material on record
in the backdrop of the submissions made on behalf of
the rival parties. A specific case of the petitioner is that
there is total lack of pleadings in the plaint, particularly
in the paragraph pertaining to the cause of action as
regards the date of 23/10/2007 and the alleged cash
repayment made by the original borrower. It was
submitted that when the aforesaid date was sought to
be incorporated by way of amendment in the paragraph
pertaining to cause of action, the same had been
rejected by the Court below and that therefore, there
was total absence of pleading in order to give an
opportunity to respondent No.1 to lead evidence by way
of re-examination. This Court has considered the effect
of rejection of amendment sought by respondent No.1 in
the backdrop of pleadings in the plaint itself. There can
be no dispute about the fact that insofar as the
paragraph pertaining to accrual of cause of action is
concerned, the date 23/10/2007 is not mentioned and
there is no reference to cash repayment on the said date
by the original borrower. Nonetheless, in paragraph-6
of the plaint, respondent No.1 has referred to the
amount of loan disbursed, the details of the loan
account number and specific reference was made to an
extract of loan account and the statement duly certified
by the Principal Officer of respondent No.1-Bank, which
states details of the amount disbursed, interest accrued
and the deposits made by the defendants. The said
statement was placed on record along with the plaint.
KHUNTE
54-WP672.18.odt
6. Apart from this, the Court below itself granted
permission to respondent No.1-Bank to place on record
receipt dated 23/10/2007 and also revival letter. There
is nothing to show that the order passed by the Court
below granting such permission was ever challenged by
either the borrower or the petitioner before this Court.
7. In the face of such material, this Court is
convinced that there was sufficient material on record in
the form of pleadings and documents to justify granting
opportunity to respondent No.1-Bank to lead evidence
by way of re-examination. The Court below properly
appreciated the material on record and also concluded
that such material was relevant and necessary for just
decision of the case. The Court below has been cautious
enough to protect the interest of the petitioner and
respondent No.3, i.e. the original defendant by
permitting them to cross-examine witness of respondent
No.1 after re-examination. Therefore, there can be no
complaint of any prejudice that may be sufferred by the
original defendant.
8. Insofar as the judgment of the Hon'ble Supreme
Court in the case of Syed and Company v. State of
Jammu and Kashmir (supra) is concerned, there can be
no quarrel with the proposition that in the absence of
pleadings, a party cannot be permitted to lead evidence.
But, in view of the findings rendered herein above, the
ratio of the said judgment would not be applicable in
the present case.
KHUNTE
54-WP672.18.odt
9. In view of the above, the writ petition is found
to be without any merits and accordingly, it is
dismissed.
10. Needless to say, the Court below shall proceed
to consider the matter on merits, without being
influenced by the observations made herein above.
11. Considering that respondent No.2 filed a
summary suit for recovery of amount, as far back as in
the year 2010, the Court below is directed to expedite
the proceedings and in any case dispose of the same
within a period of six months from today.
JUDGE
Signed By:GHANSHYAM S
KHUNTE
Signing Date:22.07.2022 10:12
KHUNTE
