M/S Bharat Bhushan vs M.P. Goel
2009 Latest Caselaw 5047 Del

39
*IN THE HIGH COURT OF DELHI AT NEW DELHI

                      +    CM(M) No.1142/2009

                               Date of Decision: 7th December, 2009
%

      M/S BHARAT BHUSHAN                ..... Petitioner
                   Through : Mr. Virender Goswami and
                             Ms. Soni Singh, Advs.

                      versus

      M.P. GOEL                               ..... Respondent
                           Through : Mr. D.R. Bhatia, Adv.

CORAM :-
THE HON'BLE MR. JUSTICE J.R. MIDHA

1.      Whether Reporters of Local papers may                 YES
        be allowed to see the Judgment?

2.      To be referred to the Reporter or not?                YES

3.      Whether the judgment should be                        YES
        reported in the Digest?

                          JUDGMENT (Oral)

1. The petitioner has challenged the order of the learned

Tribunal whereby the respondent's application under Order 6

Rule 17 of the Code of Civil Procedure has been allowed.

2. The respondent has filed a suit for recovery of

Rs.2,31,000/- against the petitioner which is pending before

the learned Trial Court. The averments made in the plant

inter-alia are that the respondent paid a sum of Rs.1,50,000/-

to the petitioner by means of two cheques bearing

No.015941 dated 5th October, 1994 for Rs.1,00,000/- issued

by Bank of Maharashtra and a cheque bearing No.015952

dated 24th October, 1994 for Rs.50,000/- and both these

cheques were debited from the account of the respondent

and were credited to the account of the petitioner.

3. The only amendment sought to be made by the

respondent is that the aforesaid two cheques were drawn on

Punjab National Bank and not on Bank of Maharashtra and,

therefore, the words "Bank of Maharashtra" in para - 6 of the

plaint be substituted with "Punjab National Bank". The

reason given by the respondent for making this amendment

is that there was a bonafide and clerical mistake on the part

of the respondent. The respondent has account in Bank of

Maharashtra as well as Punjab National Bank and the

respondent inadvertently mentioned Bank of Maharashtra

instead of Punjab National Bank. The learned Tribunal has

allowed the amendment on the ground that the amendment

does not change the nature of the suit or alter or substitute a

new cause of action and the power to grant amendment of

pleadings is intended to serve the ends of justice and cannot

be governed by narrow or technical limitations. The learned

Trial Court has further held that the Rules of procedure are

intended to be a hand-maid to the administration of justice.

The learned Tribunal has allowed the amendment subject to

cost of Rs.5,000/-.

4. The learned counsel for the petitioner submits that by

virtue of the amendment of Code of Civil Procedure by Act 22

of 2002, the amendment cannot be allowed after the trial

has commenced unless the Court comes to the conclusion

that in spite of due diligence, the parties could not have

raised the matter before the commencement of trial.

5. The learned counsel submits that there is no due

diligence on the part of the respondent. However, on the

query by this Court, the learned counsel for the petitioner

does not dispute that the petitioner has received the

payment of Rs.1,50,000/- by means of two cheques bearing

No.015941 dated 5th October, 1994 for Rs.1,00,000/- and

No.015952 dated 24th October, 1994 for Rs.50,000/- but the

same were not received by the petitioner from the

respondent but from one Mr. Subhash Chand Goel in

discharge of his own debt.

6. In the facts and circumstances of this case and also

noting that the petitioner does not dispute the receipt of two

cheques, this Court is of the view that the amendment

sought by the respondent is necessary for determining the

real issues between the parties and it shall not cause any

prejudice to the petitioner. With respect to the due

diligence, this Court is satisfied with the explanation given by

the respondent that he had account in two banks and the

respondent believed the cheque to have been issued from

Bank of Maharashtra and this mistake was later discovered

by the respondent when he filed the application for

amendment before the learned Trial Court. The case for

amendment, therefore, falls within the Proviso of Order 6

Rule 17 of the Code of Civil Procedure which provides that

the amendment can be allowed even after the trial

commenced.

7. For all the aforesaid reasons, the petition is dismissed.

8. Nothing stated hereinabove shall be construed as

opinion on the merits of this case.

J.R. MIDHA, J

DECEMBER 07, 2009 mk