M/s Mauria Udyog Ltd. vs Corporation Bank and Others

Hima Kohli, J.—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. 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.

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.

This Court has heard the counsels for the parties and considered their respective stands.

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.

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.

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 Rs. 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. 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.