Canara Bank vs Nandi Gas Distributors And Others
1996 Latest Caselaw 938 Del

JUDGMENT

Usha Mehra J.

1. By the impugned order dated 18th March, 1994, the Civil Judge, Delhi, dismissed the application of the petitioner under Order 6, rule 17, Civil Procedure Code, 1908, on the ground that if the amendment is allowed, it would amount to withdrawing the admission already made. Moreover, it would amount to setting up of a new cause.

2. Briefly the relevant facts for determination of this petition are that the petitioner, a nationalised bank, filed a suit for recovery of an amount against Nandi Gas Distributors, a sole proprietorship concern, as well as against the guarantors. According to the petitioner, respondent No. 1-proprietary concern, took a term loan of Rs. 15,000 on 12th February, 1984. Respondents Nos. 2 and 3 stood co-obligants. With the proprietor they also executed a pronote as well as take delivery letter to DPN. The hypothecation deed was also executed by the proprietary concern. Respondent No. 1 acknowledged the debts and the security. The loan was payable by monthly instalments of Rs. 500 each plus interest. It is the case of petitioner that at the time of drafting the plaint, by oversight instead of mentioning the name of Shri Kuldeep Singh as the sole proprietor of respondent No. 1, the name of Shri Pritam Singh, guarantor/co-obligant, who is also signatory to the pronote was mentioned as proprietor. This mistake crept in because of not scrutinising the pronote properly. The mistake was inadvertent. Since the proprietary concern is already a party no harm would be caused if amendment in the cause title is allowed thereby mentioning the correct name of the sole proprietor of the firm as Shri Kuldeep Singh. Further, Shri Pritam Singh be allowed to be correctly shown as co-obligant.

3. The respondents' main objection against allowing of this amendment was that if allowed, it would amount to withdrawing the admission already made. The trial court by the impugned order concluded that the suit against Shri Kuldeep Singh whom the petitioner now wants to implied would be barred by time. Secondly, the firm being already before the court, if amendment of the cause title is allowed, it would amount to setting up a new case.

4. After hearing Ms. Inderjit Saroop, for the petitioner, and Mr. V. K. Shali, for the respondent, I am of the considered view that the impugned order cannot be sustained. The amendment sought was only of the cause title. All the parties are before the court, i.e., the proprietary concern and the co-obligants. By inadvertence instead of giving the name of the sole proprietor the name of the co-obligant was given as proprietor. This, to my mind, does not amount to any admission which the petitioner wants to withdraw, nor would the amendment, if allowed, amount to setting up a new case. In fact what the petitioner wanted was only to clarify the identity of the proprietorship concern, i.e., of respondent No. 1. Neither was the petitioner changing the cause of action with regard to taking of loan by the respondents nor about the non-payment of the instalments by the respondents. Therefore, there was no question of setting up a new case. The law of amendment is now well-settled by the apex court. Courts have been very liberal in allowing amendments provided they do not change the cause of action already set up. As pointed out above merely clarifying the identity of the proprietary concern and wanting to bring on record the name of the proprietor does not amount to setting up a new case. Therefore, the amendment ought to have been allowed. Mr. V. K. Shali fairly conceded that the firm is already before the court as respondent No. 1. Merely clarifying the correct name of the sole proprietor, to my mind, does not amount to changing the nature or the cause of the suit. In fact, the firm which took the loan being a legal entity and could be sued and in fact has been sued before the court. If due to omission, the name of the co-obligant was given as proprietor it does not mean a new case has been set up. Merely asking for a change in the cause title by no stretch of imagination would mean setting up a new case. In order to avoid technical objections, the petitioner wants Mr. Kuldeep Singh, sole proprietor's name, to be added. So far as Mr. Pritam Singh is concerned, he would remain the defendant before the court. As regards limitation, that question Mr. Kuldeep Singh can raise after being imp leaded as a party.

5. For the reasons stated above, the impugned order is set aside. The amendment sought for being formal in nature is allowed subject to payment of Rs. 1,000 as costs.