UCO BANK Vs. POLY FAB INDUSTRIES PRIVATE LIMITED

JUDGEMENT

(1.) This is an application seeking amendment of the plaint and for adding one more defendant in the suit. The plaintiff had brought this suit for recovery of Rs. 16,83,770.59 P. against five defendants under Order XXXVII of the Code of Civil Procedure. One of the amendments sought is that the plaintiff now wants that the suit be treated as a regular suit and would like to delete the pleas taken with regard to bringing this suit within the four corners of Order XXXVII. Counsel for the defendants have no objection to allowing this amendment.

(2.) Another amendment sought by the plaintiff is that now Mr. A. S. Kochhar has succeeded to Mr. J. P. Vohra and is the Manager, Principal Officer and constituted attorn'ey of the plaintiff and the original suit was signed, verified and instituted on behalf of 'the plaintiff by Mr. J.P. Vohra and thus, the amended plaint be allowed to be signed, verified and instituted by Mr. A. S. Kochhar. There cannot be any objection to this particular amendment. The amended plaint obviously can be signed, verified and instituted by any authorised person on behalf of the plaintiff bank. Defendant No. 1 is the private limited company whereas defendants 2 to 5 have been joined as directors of defendant No. I and they have been also sought to be made personally liable for the amount in question as they had allegedly executed deeds of guarantee. Mr. S. K. Saboo, who has not been impleaded as one of the defendants, is also one of the directors of defendant No. 1-company and the plea is taken that he had also executed continuing letters of guarantee in the similar manner as have been executed by other directors and thus, he is also personally and individually liable for the amount due from defendant No. 1 and by inadvertent mistake he could not be added as a defendant in the original plaint. This amendment is strongly opposed by all the defenlants, so also by Mr. S. K. Saboo. It has been argued before me that the claim against Mr. S. K. Saboo has become time barred and thus no amendment of the plaint should be allowed to implead Mr. S. K. Saboo as one of the defendants.

(3.) The learned counsel for the plaintiff has on the other hand, contended that the personal and individual liability of Mr. S. K. Saboo continues in view of the fad that he had executed a continuing letter of guarantee and thus, the claim in the suit is not barred by limitaion against Shri S. K. Saboo. It would be a disputed question of fact to be decided on merits whether Shri S. K. Saboo has executed continuing letter of guarantee or not. it assuming for the sake of arguments it is proved that .he had executed such a document then perhaps the suit against Shri S. K. Saboo would not be barred even on the date this application seeking amendment of the plaint is filed. It is true that if claim against Shri S. K. Saboo is to be deemed to be time barred on the date this application for amendment has been filed to implead him as a defendant then obviously the vested rights which have accrued to him by lapse of time should not be allowed to be divested by allowing the amendment of the plaint. However, in any view. the intrests of shri S. K. Saboo could be well protected by making this particular amendment effective from the date of the filing of the application seeking amendment. Such a course could be legally adopted by this court is evident from the law laid down by a Division Bench of this Court in Jawaharlal Mamtain' v. Bhgwchand Motumal Mamtani & Another. ILR 1981(1) Delhi 1(1). Tt was laid down in the judgment of Prakash Narain, A.C.J., that the court in considerin'g an application for amendment is not to act in the vacuum and must exercise its power by adopting all the rules of judicial discretion. The power, however, cannot be restricted to only a power to award costs. In appropriate cases keeping the plea of limitation in view of other similar aspects in veiw, the court may well put the plaintiff or the defendant. Whoever is seeking amendment, to such terms as may be just including laying down that the] amendment will be effective only from a particular date. In the Judgment of S. Ranganathan, J. (as His Lordship then was), the same observation was made that it could nut be laid down as a matter of principle and invariable rule that an amendment once ordered should relate back to the date of the original pleadings and the court lacks the power even in appropriate cases to restrict the scope of amendment sought for. So, in the present case it is in the interest of justice that the claim against the proposed defendant No. 6 would be deemed to have been brought on the date of filing of the amendment application and thus, the effect of this amendment is restricted. In case ultimately it is proved that no continuing guarantee has been executed by Shri S. K. Saboo then obviously the claim against him making him personally and individually liable for the amount due from defendant No. 1 would be deemed to be time barred on the date of the filing of the amendment application. I allow the amendment restricting the effect of the amendment with regard to impleading Shri S. K. Saboo as defendant No. 6 to the date of the filing of this application for amendment.