Abhiram Infra Projects Private Limited vs HDFC Bank Limited

Anil Kumar Srivastava, Chairperson

THE APPELLATE TRIBUNAL :

Instant appeal has arisen against order dated 15.6.2023, passed by Learned DRT-II, Hyderabad, in I.A. 140 of 2022 arising out of O.A. 1427 of 2017 (HDFC Bank Limited -vs- Abhiram Infra Projects Private Limited & Others) whereby I.A. No. 140 of 2022, filed by the Appellant (Respondent in appeal) amendment application was allowed.

Feeling aggrieved, Defendants in the O.A. preferred the instant appeal.

I have heard the Learned Counsel for the parties and perused the record.

As per the pleadings of the parties, it transpires that O.A. was filed by the Respondent Bank for recovery of Rs.13,92,77,093.02 with interest. Twenty two Bank Guarantees were submitted by the Appellants to the Respondent Bank out of which four Bank Guarantees were invoked before filing of the O.A. Pending O.A. some more Bank Guarantees were invoked and the Appellant was obligated to release the amount totaling Rs.4,31,51,774.00 to respective beneficiaries. Total amount of invoked Bank Guarantees was raised to Rs.14,42,72,974.00. As per the amendment application, total amount due, including interest, as on 7.2.2022 was increased to Rs.45,75,70,600.44.

Appellants filed objections before the Learned DRT stating that fresh cause of action has arisen. They requested the Bank not to make any debit to their accounts vide letter dated 19.8.2016. While the Bank replied vide letter dated 30th August, 2016 and informed the Defendants that the Bank Guarantees were forfeited on 5.8.2016 and the proceeds were paid to the beneficiary. Bank accepted the invocation of Bank Guarantees against the terms, hence, amendment could not be allowed.

Learned DRT allowed the amendment application holding that payment under the Bank Guarantees were made consequent to filing of the O.A. Accordingly, amendment application was allowed.

Learned Counsel for Appellant would submit that the Bank invoked the Bank Guarantees against terms of the agreement. At the time of filing of the O.A. Bank Guarantees were not invoked and O.A. was filed. If any Bank Guarantees is invoked, pending proceedings, that cannot be included in the O.A. Further it is submitted that the amount now claimed is Rs.45,75,70,600.44 wherein the interest is calculated from the date of filing of the O.A. as well as Bank Guarantees were invoked on subsequent date. When Bank Guarantees were invoked, pending O.A., relief cannot be included in the pending O.A.

Per contra, Learned Counsel for Respondent Bank submits that total twenty two Bank Guarantees were deposited with the Bank out of which certain Bank Guarantees were invoked and filed pending O.A. Some more Bank Guarantees were invoked and their amount was included in the O.A. proceedings. It is submitted that the proposed amendment neither changes the nature of the claim nor are time barred.

As far as amendment of the pleadings is concerned, it is settled legal proposition that an amendment to the pleadings can be incorporated if it does not change the nature of the claim or is not time barred. In the present case, as far as the issue of limitation is concerned, it is nowhere stated that the proposed amendment is time barred; rather, it is stated that it will change the nature of the claim. Further, the Appellants would be at liberty to raise all the pleadings or pleas by filing a written opposition to the amended pleadings under Section 19 of the Recovery of Debts And Bankruptcy Act, 1993.

The Hon’ble Supreme Court in the matter of Basavaraj -vs-Indira & Others [(2024) 3 SCC 705] and reiterated the same proposition and held that :

“14. This Court in Revajeetu case enumerated the factors to be taken into consideration by the court while dealing with an application for amendment. One of the important factor is as to whether the amendment would cause prejudice to the other side or it fundamentally changes the nature and character of the case or a fresh suit on the amended claim would be barred on the date of filing the application.”

Further, the nature of the claim is not changed by the proposed amendments. As far as issue of set off is concerned, Appellant would be at liberty to claim set off, if any, in the O.A. proceedings. Issue of claim of interest can also be decided by the Learned DRT at the time of final adjudication. Learned DRT would be at liberty to decide as to at what rate and from which date, interest, if any admissible under the laws, can be claimed by the Bank. In order to avoid multiplicity of the proceedings, it was necessary for the DRT to allow the amendment application. Impugned order does not suffer from any illegality.

On the basis of the discussion made above, I am of the considered view that the Learned DRT has not committed any illegality in passing the impugned order. Accordingly, the Misc. Appeal lacks merits and is liable to be dismissed.

ORDERED

The Misc. Appeal is dismissed. Order dated 15.6.2023, passed by Learned DRT-II, Hyderabad, in I.A. 140 of 2022 arising out of O.A. 1427 of 2017 (HDFC Bank Limited -vs- Abhiram Infra Projects Private Limited & Others) is affirmed.

Copy of the order be supplied to Appellant and the Respondent Bank and a copy be also forwarded to the concerned DRT.

File be consigned to Record room.

Order signed, dated and pronounced in open Court.