KUTTIKRISHNAN NAIR Vs. ITTICHAPPA PANICKER

JUDGEMENT

(1.) The plaintiffs application for amendment of the plaint was refused by the Trial Court and he has preferred this Civil Revision Petition from the order.

(2.) The suit was one for recovery of the money on the basis of two promissory notes. The amendment sought was to convert the suit into one on the original consideration. The application for amendment was made on 20-6-1059 when a suit for recovery of the loan would have been barred, in the absence of acknowledgment of the debt. It is not possible to say at this stage whether there are such acknowledgments. The application was dismissed mainly on the ground that such amendments can be allowed only where the promissory note is executed for an antecedent debt or collateral security for a loan or by way of conditional payment or if the note does not embody all the terms of the contract and that the promissory notes sued on do not fall within these categories. This view is based on a decision of the Madras High Court, Perumal v. Kamakshi ( AIR 1938 Mad. 785 -FB). That was a case of revision from the decree in a small cause suit. The promissory note sued on was unstamped but the Trial Court nevertheless gave a decree on the original loan. The question here is whether a plaint can be amended to get over the difficulties that may arise if the suit is to continue as one on the promissory notes. The question of amendment must be governed by other considerations.

(3.) It is pointed out by counsel for the respondent that a suit on the original consideration would have been barred on the date of the application for amendment and that the amendment, if allowed, would deprive him of the plea of limitation. There is no inflexible rule that amendment should be refused in such cases. In Leach & Co. Ltd. v. M/s. Jardine Skinner & Co., ( AIR 1957 SC 357 ) the Supreme Court has held: