BUTNA DEVI Vs. AMIT TALWAR

JUDGEMENT

(1.) By this application the Defendant No. 1 seeks to amend the written statement along with the counter claim thereby adding para-13 in the preliminary objections as under:

(2.) Learned counsel for the Defendant/applicant contends that the amendment in the written statement and the filing of the counter claim is necessitated because the Plaintiff has amended the plaint by withdrawing the alternate relief. The Plaintiff had made an alternate prayer in the plaint seeking directions to the Defendant No. 1 to return the cheque amount of Rs. 30,88,249/- with damages of a sum of Rs. 5 lakhs and interest pendentelite and future. By way of I.A. No. 15749/2011 under Order VI Rule 17 CPC the Plaintiff sought amendment of the plaint deleting this alternate prayer in the suit which was allowed vide order dated 14th February, 2012. Hence the Defendant has been compelled to file the present application reserving the right to file the counter claim with regard to return of Rs. 30,88,249/- to the Plaintiff.

(3.) Learned counsel for the Defendant/applicant submits that in view of this prayer as already made in the suit, as it stood, the Defendant was not required to file the counter claim and only when the amendment in the plaint was allowed vide order dated 14th February, 2012, the Defendant/Applicant filed the present application on 11th March, 2013. It is contended that there is no delay in filing the present application and even if there is a delay the same is not a ground to reject the amendments as held by the Hon'ble Supreme Court in Andhra Bank vs. ABN Amro Bank N.V. and others, 2007 AIR(SC) 2511 Further at this stage this Court cannot go into the merits of the amendment and cannot test the veracity or truthfulness of the amendments sought to be made. Reliance is placed on Rajesh Sharma vs. Krishan Pal and Another, 2011 126 DRJ 34. The trial is yet to begin. Though issues have been framed however, the evidence by way of affidavit of the Plaintiff's witnesses have not been filed. Further even where the trial has started the amendment in the plaint or the written statement can be sought subject to the condition that the parties seeking the amendment has to show that despite due diligence it was not in possession of the necessary evidence with it.