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Judgment
S. Ravi Kumar, J
This Appeal is preferred against order dated 23rd February, 2016 in Interim Application (I.A.) No. 67 of 2016 (Exh. No. 137) in Original Application (O.A.) No. 114 of 2005. Appellant herein filed above referred I.A. No. 67 of 2016 seeking amendment to the O.A. and said application is dismissed for reasons stated therein, aggrieved by which present Appeal is preferred.
It is the contention of the appellant that original O.A. is filed by Vijaya Bank for recovery of Rs. 24,78,44,290/- as on 12th May, 2005 together with future interest @ 14.85% p.a. with quarterly rests from the date of the O.A. till payment, said debt was assigned in favour of present appellant and in view of modification agreement dated 29th September, 2011 appellant is entitled for interest @ 22% p.a. with monthly rests from June, 2010 and, therefore, O.A. has to be amended in respect of rate of interest. According to respondents i.e. defendants in the O.A. alleged modification agreement is in pursuance of letter of settlement dated 28th February, 2011, but the appellant has revoked the said letter on 17th June, 2013 and thereafter issued notice under Section 13(2) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short the SARFAESI Act), therefore, the claim of the appellant is not tenable. It is also contention of the respondents the defendants that application for amendment is highly belated and the same is not maintainable as it is filed after commencement of trial. These are the main contentions of respective parties.
Both side Advocates submitted their arguments extensively elaborating above referred contentions.
The main submission of the Advocate for appellants is that Tribunal below rejected amendment application on four grounds, firstly that the proposed amendment introduces new case, secondly amendment is belated, thirdly amendment is useless and fourthly proposed amendment restricts Power of the Tribunal to determine pendente lite interest. He submitted that reasons recorded by the Tribunal below for dismissal of the amendment applications are devoid of merits because the Tribunal below cannot go into merits of the proposed amendment and the delay is no ground to refuse amendment and if a party can institute a fresh suit in respect of new cause of action and if earlier case between the parties is pending by that time, that party can introduce a fresh case by way of amendment. To support his argument he placed reliance on some decisions of Hon'ble Supreme Court and Hon'ble High Court of Bombay. Advocate for appellant submitted that the objection with regard to bar to amend the pleadings after commencement of trial is not tenable as Code 'of Civil Procedure is not applicable to the proceedings before DRT. He further submitted that even if it is treated that provision in Order 6 Rule 17 of C.P.C. is made applicable, then as the appellant has to show sufficient reason for not applying for amendment earlier by which the appellant only making a claim and ultimately it is for the Tribunal below to accept it or not, therefore, amendment has to be permitted.
On the other hand, it is the contention of defendants respondents, present application for amendment is filed in the middle of arguments which cannot be permitted and Tribunal below rightly refused permission. It is further submitted that when letter of settlement which was basis for claim of the appellant by amendment is revoked by appellant itself in June, 2013, therefore, seeking amendment of the O.A. in 2016 is nothing but abuse of process of law. It is further submitted that if really appellant was diligent and fair it should have pleaded in the amendment application about letter of revocation dated 17th June, 2013 and its validity, but without disclosing all facts seeking amendment to limited extent is not permissible. It is further submitted that the proposed amendment is in respect of fresh cause of action which entered into by the present appellant separately with the borrower which was not there with the original creditor i.e. Vijaya Bank. It is submitted that request of appellant is not bona fide and deciding the rate of pendente lite interest is complete discretion of the Tribunal and party cannot claim it by way of amendment. It is submitted that Tribunal below has not committed any error and there are no grounds to interfere with the order of the Tribunal below.
I have perused material papers including impugned order dated 23rd February, 2016. It is not in dispute that Vijaya Bank filed O.A. No. 114 of 2005 for which defendants filed their written statement. It is also not in dispute that present amendment petition is filed after commencement of trial at the stage of arguments. It appears from the record that debt was assigned to present appellant and in pursuance of that present appellant applied for substitution on 23rd February, 2011 with a request to join the appellant herein as applicant to the O.A. No. 114 of 2005 based on Deed of Assignment dated 29th January, 2010, that application was allowed on 29th October, 2014 and amendment was carried out in the O.A. in 17th November, 2014. Admittedly, within a week day's of filing amendment application, alleged Letter of Settlement was executed between the appellant and the respondents herein. According to respondents said letter of settlement was revoked by appellant itself, whereas appellant contends that it is not a true and valid revocation. Whatever it may be, revocation is dated 17th June, 2013 by which date the application filed by appellant herein to substitute it as applicant in O.A. No. 114/2005 was pending. If really appellant was diligent and bona fide, nothing prevented it to plead this relief also by way of amendment in the substitution application, before deciding that, application, Even after allowing that earlier amendment application in October, 2014 till June, 2016, this application for amendment is not filed. One of the contention of the appellants is that these facts could not be brought on record in view of the stay operating in the O.A. But even according to appellant, said stay order was vacated in June, 2014 i.e. much prior to disposal of earlier application. One of the contentions of the appellant is that provisions of C.P.C. cannot be applied to proceedings before Debts Recovery Tribunal, therefore, prohibition under Order 6 Rule 17 of C.P.C. for amendment after commencement of trial is not applicable. Even that is so it is for the appellant to state under what provision it has sought amendment of pleadings. Admittedly, there is no specific provision in the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (for short the RDDBFI Act) permitting amendment of pleadings. But amendments are applied for and allowed by practice taking aid of C.P.C. governing amendment of pleadings. As per Order 6 Rule 17 of C.P.C. there is a specific bar to permit amendment of pleadings after commencement of trial. However, there is an exception for this bar. If any party satisfies that such amendment could not be taken in spite of due diligence before commencement of trial, the Court may permit such amendment. So it is for appellant to show why this amendment could not be prayed prior to commencement of trial. No doubt, the trial was commenced in the year 2006 itself by which the date the appellant herein was not in picture. What is expected from appellant is, after date of assignment of debt in its favour, it should show sufficient reasons for not taking this step earlier. As already referred to above, when the appellant filed application to substitute its name in place of original applicant Bank and during the pendency of that application, the events like execution of Letter of Settlement, Deed of Modification and Letter of Revocation took place before disposal of that application, it is minimum expected from the appellant to explain as to why these steps could not be taken. One explanation offered is that there was a stay running and, therefore, these facts could not be brought on record. But that stay was vacated on 23th June, 2014 even as per own case of appellant and earlier amendment application for substitution of appellant was ordered in October 2014, so there was gap of nearly four months even after lifting the stay for appellant to take steps. No explanation is offered for this. Even after allowing application in October 2014, carrying out of amendment took place in November, 2014, till January, 2016 no steps were taken. As seen from the record, arguments were commenced in the main O.A. in January, 2016 and during middle of arguments appellant has come forward with this application for amendment. This shows the bona fide and diligence on part of appellant in seeking amendment. Simply because, no prejudice would be caused to other side, appellant is not entitled for relief of amendment. Other contention of appellant is that present amendment is only a request which has to be decided in the main case. But that cannot be ground to say that appellant can come at any stage of proceeding seeking amendment. The decisions relied by appellant in Andhra Bank v. ABN Amro Bank N.V., VI (2007) SLT 653 : III (2007) CLT 239 (SC) : (2007) 6 SCC 167; Rajesh Kumar Aggarwal v. K.K. Modi, III(2006) SLT 67 : (2006) 4 SCC 385; Lok Housing & Constructions Ltd. & Everest Industries Ltd. v. Nirmal Lifestyle Ltd., 2005(2) Mh. L.J. 700 and judgment dated 5th December, 2016 of the Hon'ble High Court of Bombay in Commercial Appeal (L) No. 31 of 2016 in Chamber Summons No. 816 of 2015 in Suit No. 4651 of 1999 are on the point that Court cannot go into merits of the amendment and delay is no ground for refusal of prayer for amendment, and even subsequent cause of action on the basis of which a fresh suit is permissible can also be taken up as ground for amendment which principles cannot be disputed. But as per facts of this case diligence shown by appellant referred to above do not warrant any liberal approach towards appellant for applying those principles to present case.
In case of Vidyabai v. Padmalatha, I (2009) SLT 336 : AIR 2009 SC 1433, the Hon'ble Supreme Court clearly indicated in para 14 of the judgment and observed that "It is the primal duty of the Court to decide as to whether such an amendment is necessary to decide the real dispute between the parties. Only if such a condition is fulfilled, the amendment is to be allowed". Hon'ble Supreme Court also held that proviso to Order 6 Rule 17 of the CPC restricts the power of the Court. Admittedly, alleged letter of settlement dated 28th February, 2011, deed of modification dated 29th September, 2011 and letter of revocation dated 17th June, 2013 are not subject-matters in the O.A. and they do not fall for consideration. Even if the amendment is permitted they do not fall for consideration as those facts are not pleaded in the proposed amendment with regard to revocation letter dated 17th June, 2013 in respect of which focus is made and arguments are advanced in this Appeal. So when the proposed amendment is no way relevant and necessary to the issue involved in the O.A., as rightly pointed by Advocate for defendants-respondents such amendment cannot be permitted.
On a scrutiny of the material, I am of the view that Tribunal below rightly refused permission to amend the O.A. and exercised its discretion judiciously which do not warrant any interference.
For these reasons, I am of the considered view that Appeal is devoid of merits and liable to be dismissed. Accordingly appeal is dismissed with no order as to costs.
All Miscellaneous Applications, if any, are dismissed as infructuous.