V.SADAGOPAN Vs. CANARA BANK

JUDGEMENT

(1.) These Civil Revision Petitions are directed against (i) the refusal of the trial Court to number the application filed by the second defendant/revision petitioner herein to set aside the ex-parte decree passed against him in O.S.No.40 of 2012 and (ii) challenging the amendment of the plaint by including the relief against the second defendant.

(2.) Heard Mr.P.Valliappan, learned Senior Counsel appearing for the revision petitioner in both these revision petitions and Mr.Raghunathan, learned counsel appearing for the first respondent/plaintiff in C.R.P.No.2882 of 2017 and the respondent in C.R.P.No.2883 of 2017, and Mr.Balamurali, learned counsel appearing for the second respondent/first defendant in C.R.P.No.2882 of 2017, namely, Kotak Mahindra Bank Limited.

(3.) Mr.P.Valliappan, learned Senior Counsel appearing for the revision petitioner would state that originally the suit was filed by Canara Bank/the plaintiff, against three defendants, namely, (1) Kotak Mahindra Bank, (2) the revision petitioner and (3) M.M.Clothing INC., Private Limited/third defendant, represented by its partner. He would invite my attention to the relief sought for in the said suit, namely, recovery of a sum of Rs.19,60,292.00 from the first defendant Bank. The learned Senior counsel would further submit that no doubt, the revision petitioner was served with summons in the said suit and he has also engaged a lawyer to represent him in the said suit. However, the revision petitioner has not chosen to defend the suit, considering the fact that no relief was sought for as against the revision petitioner. Subsequently, the revision petitioner was set ex-parte on 19/3/2013. Thereafter, the suit was contested by the first defendant Bank alone and pending trial, the plaintiff has taken out an application seeking amendment of the plaint to amend the prayer portion to include the relief as against not only the first defendant but also the second defendant [jointly and severally] and the said application came to be allowed by the trial Court. The learned Senior Counsel invites my attention to Rule 31 of the Civil Rules of Practice and would state that the Rule mandates that the revision petitioner was to be put on notice about the application for amendment. He would further state that when the original claim was not directed against the second defendant, but only by way of amendment, the prayer was sought as against the second defendant, the revision petitioner ought to have been put on notice, even prior to the amendment being ordered. He would further invite my attention to the provisions of Order IX Rule 13 C.P.C and state that the revision petitioner, though remained ex-parte and did not choose to contest the suit, despite the fact that the suit was subsequently decreed on contest by the first defendant, the revision petitioner is entitled to set aside the ex-parte decree. He would specifically refer to Proviso to Order IX Rule 13 C.P.C in this regard. The learned Senior Counsel would also point out to the relevant dates and state that on the date of seeking amendment to include the relief as against the revision petitioner, the claim was clearly time barred. In this connection, the learned Senior Counsel would invite my attention to Articles 23, 26 and 103 of the Limitation Act.