Avara Haji vs South Malabar Gramin Bank

Thomas P. Joseph, J.—Respondent appears through standing counsel. Ext. P7, order dated 23.02.2013 on I.A. No. 867 of 2012 in O.S. No. 173 of 2009 of Munsiff Magistrate''s Court, Mannarkkad is under challenge.

Respondent filed that suit for recovery of money alleging that petitioner availed a loan of Rs. 28,000/- (Rupees twenty eight thousand only) on 31.01.2007. Petitioner filed written statement admitting that he availed loan of Rs. 28,000/- (Rupees twenty eight thousand only) on 31.01.2007 but raising certain other contentions. In the meantime, petitioner approached this court with W.P.(C). No. 33688 of 2009 claiming that he is entitled to the benefit of the Agricultural Debt Waiver and Debt Relief Scheme, 2008 and (for short "the scheme") of the Reserve Bank of India. That writ petition was resisted by the respondent on various grounds including that the scheme is available only to loans availed on or before 31.03.2007 and which are overdue on 31.12.2007 while the loan in this case was availed by the petitioner on 31.01.2007 and would be overdue only on 31.01.2008. This court disposed of the writ petition by Ext. P4, judgment refusing to allow the relief prayed for by the petitioner but reserving right of petitioner to approach the civil court to challenge the fresh loan that appears to have been granted in his favour and seek benefit of the scheme.

Pursuant to the above said direction in Ext. P7, judgment, petitioner filed I.A. No. 867 if 2012 to amend the written statement claiming benefit of the scheme. There, petitioner wanted to say that the loan was not availed of on 31.01.2007 and that the statement to that effect in the written statement is wrong. The application was opposed by the respondent. Learned Munsiff-Magistrate, mainly for the reason that petitioner cannot be allowed to resile from an admission in the written statement dismissed I.A. No. 867 of 2012. Ext. P7, order is thus under challenge.

Learned counsel for the petitioner has invited my attention to Ext. P3 to contend that the petitioner is entitled to the benefit of the scheme. It is contended that it is by fabricating documents that respondent has made it to appear that loan was availed of on 31.01.2007. According to the learned counsel, in the circumstances and in view of the right reserved in Ext. P4, judgment petitioner is entitled to amend the written statement suitably.

Learned counsel for respondent submits that there is a specific admission in the written statement that statement in the plaint regarding petitioner availing the loan on 31.01.2007 is true, and that amendment allowing withdrawal of that admission cannot be permitted. It is also argued that what is reserved by Ext. P4, judgment is only right of petitioner to challenge documents relied on by the respondent. I have gone through Ext. P2, written statement and find a specific statement in Paragraph 2 that statement in the plaint regarding petitioner availing the loan on 31.01.2007 is correct. That statement cannot be allowed to be withdrawn or altered by way of amendment. But, even an admission can be explained away. Therefore, petitioner can be permitted to state whatever he wants additionally in answer to the plaint claim and referring to the statement already made in the written statement by incorporating a separate paragraph in the written statement but not in the way prayed for in I.A. No. 867 of 2012. In that view of the matter, I do not find reason to interfere with Ext. P7, order dismissing I.A. No. 867 of 2012. But, that need not stand in the way of petitioner explaining away the statements in Ext. P2 written statement.

Resultantly the original petition is disposed of as under.

No interference is required with respect to Ext. P7, order dismissing I.A. No. 867 of 2012 in O.S. No. 173 of 2009 of the Munsiff Magistrate''s court, Mannarkkad.

It is made clear that Ext. P7, order or this judgment will not stand in the way of petitioner moving fresh application for amendment of written statement to incorporate a separate paragraph explaining whatever petitioner has stated in Ext. P2, written statement.

If any such application is preferred, learned Munsiff-Magistrate shall pass appropriate orders on that application after hearing the parties.