Delhi High Court
M/S Mauria Udyog Ltd. vs Corporation Bank And Ors. on 18 July, 2012
Author: Hima Kohli
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ I.A. No. 5115/2012 (by defendants No.1 and 2 u/O 6 R 17 CPC)
in CS(OS) 1387/2008
Date of Decision: 18th July, 2012
IN THE MATTER OF
M/S MAURIA UDYOG LTD. ..... Plaintiff
Through: Mr. Gaurav Gupta, Advocate
versus
CORPORATION BANK AND ORS. ..... Defendants
Through: Ms. Ananya Datta Majumdar, Advocate
for D-1 and D-2.
CORAM
HON'BLE MS.JUSTICE HIMA KOHLI
HIMA KOHLI, J. (Oral)
1. The present application has been filed by the defendants No.1
and 2 praying inter alia for permission to raise an additional preliminary
objection No.2 in the written statement with regard to the maintainability
of the suit on the ground that the plaintiff must be deemed to have
relinquished its claim for recovery of money paid under the letter of credit
as the plaintiff had instituted an earlier suit against the defendants, where
such a relief had not been sought by it, though it was available and
therefore, the present claim ought to be held as barred under Order 2
Rule 2 CPC.
2. It is submitted by the counsel for the defendants No.1 and 2
that the aforesaid amendment in the written statement is necessary for
the purpose of adjudicating the real controversy between the parties and
that the additional preliminary objection raised by the defendants No.1
and 2 is a purely legal issue, that ought to be permitted to be
incorporated in the preliminary objections taken in the written statement.
She states that such an amendment goes to the root of the matter and
the plaintiff is not likely to suffer any adverse consequence as the suit is
still at the preliminary stage inasmuch as after pleadings were completed
and the admission and denial of the documents undertaken by the
parties, issues have yet to be framed in the matter.
3. Reply in opposition to this application has been filed by the
plaintiff, wherein the prayer made in the application is opposed on the
ground that the amendment sought to be incorporated by the defendants
No.1 and 2 by way of taking an additional preliminary objection in the
written statement was always within their knowledge and ought to have
been raised in the written statement and having failed to do so in the first
instance, defendants No.1 and 2 cannot be permitted to improve upon
their stand without offering any valid or cogent reasons for seeking
permission to amend the written statement. He states that even
otherwise, the aforesaid plea sought to be taken by the defendants No.1
and 2 as an additional preliminary objection is devoid of merits.
4. This Court has heard the counsels for the parties and
considered their respective stands.
5. It is a settled law that while considering an application filed by
the defendant seeking amendment of the written statement, the
principles to be applied by the Court should be much more liberal as
compared to the principles relating to amendment of a plaint. In other
words, amendment to the written statement stands on a different footing
from an amendment to the plaint. Though amendment to pleadings
cannot be permitted so as to materially alter the substantial cause of
action in a plaint, there is no such principle that can be applied to
amendment in the written statement. Therefore, it is permissible for the
defendant to take inconsistent pleas, mutually contrary pleas or to
substitute the original plea taken in the written statement.
6. In the present case, a perusal of the amendment application
filed by the defendants No.1 and 2 shows that an issue with regard to the
maintainability of the present suit in view of the bar under Order 2 Rule 2
CPC has sought to be incorporated by the defendants No.1 and 2 in their
written statement. The said objection is a purely legal issue. It is
apparent that the defendants No.1 and 2 neither propose to withdraw
from any admissions made in the written statement nor do they propose
to take any mutually contradictory pleas. In any case, the aforesaid issue
being a legal issue, could have been raised by the defendants at any
stage. Further, in the present case, the records bear out the submission
of the counsel for the defendants that pleadings have been completed but
issues have yet to be framed. Therefore, it cannot be said that the
present application has been filed very belatedly or with the intention to
delay the suit proceedings.
7. Accordingly, it is deemed appropriate to allow the present
application and permit the defendants No.1 and 2 to amend the written
statement by incorporating a preliminary objection No.2 therein as set out
in para 8 of the present application, subject to payment of costs of
`5,000/- to the plaintiff through counsel. The amended written statement
shall be filed by the defendants No.1 and 2 within one week with a copy
to the counsel for the plaintiff, who may file an amended replication
within three weeks thereafter.
8. The application is disposed of.
CS(OS) 1387/2008
List on 9th January, 2013 for framing of issues.
The parties shall exchange their respective issues proposed to be
framed one week before the next date of hearing and produce the same
in Court.
(HIMA KOHLI)
JULY 18, 2012 JUDGE
rkb/sk
