TEJ MACHINARY & MILLS STORES Vs. SYNDICATE BANK

JUDGEMENT

(1.) The present revision under Section 115 of the Civil Procedure Code has been directed against the order dated 22-2-1989 passed by Vth Additional Civil :Judge, Moradabad, in Original Suit No. 99 of 1987, Syndicate Bark v. M/s Taj Machinary & Mill Stores , by which the application filed by the applicant under Order 6 Rule 17 Civil Procedure Code was rejected.

(2.) The facts in brei fare that the Syndicate Bank (O.I.P. No.1) filed a suit in the court of Civil Judge claiming the relief for a mortgage decree of Rs. 805653.25P. with pendentilite and future interest at the rate of Rs. 18.50P. per annum against the defendant jointly and severally and the amount of the decree be ordered to be realised from the sale of the mortgaged property along with pledged and hypothecated goods detailed in the plaint, which are annexures C, A and B respectively. It was further prayed that in case the proceeds of sale are found to be insufficient for the satisfaction of the decretal amount then the plaintiff may reserve the right to apply for an order for realisation of the balance amount from the farom assets and person of the defendants besides the costs of the suit. The plaint has been annexed as Annexure B to the supplementary affidavit. A detailed written statement has been filed on behalf of the defendants, on 24-2-1988.

(3.) The trial Court in regard to proposed amendment to para 15 has held that the defendants at the time of the filing of the written statement had now where stated that the Manager did not accord full facility and without informing the defendants R.R and G.R. were returned which cost him a loss of Rs. 2,00,000/- which is liable to be deducted from the amount claimed by the plaintiff. It was found that no counterclaim has been filed by the defendants nor any court fee had been paid around these grounds the proposed amendment in para 15 was rejected by the trial Court. The defendants had also proposed amendments to para 14 - A to 14 - E to be added in the written statement. In para 14 - A it was proposed that the suit is liable to be dismissed as the plaintiff had not complied with the necessary requirements but the trial Court found that the defendants No. 2 to 4 have admitted that they had pledged the property with the plaintiff as is clear from the recital in para 24. The defendants in the proposed amendment 14 - B of the written statement alleged that the suits bad for non-joinder of party as Smt. Jameela Khatoon widow of Haji Abdul Salam has not been impleaded as a necessary party. However, the trial Court while repelling the contention for adding 14 - C in the written statement held that in para 6 and 24 the defendants had admitted the execution of the deed in favour of the plaintiffs. While repelling the proposed amendment in para 14 - D of the written statement the trial Court found that the defendants had admitted the allegations as contained in para 8 of the plaint and as such any. such amendment is not liable to be permitted. As regards the amendment in the third line c f para 4 - B of the written statement the trial Court found them to be vague and not liable to,, dded. As regards the amendment in para 19 of the written statement that no rate of interest was agreed upon between the parties, it has been found by the trial Court that in the written statement, the defendants had only pleaded that the rate of interest is excessive. However, the trial Court did not allow this amendment to be added and held that the parties can adduce evidence to that effect. As regards the 6th amendment after para 19 of the written statement that the details of the amount claimed have not been specified, the trial Court found that the parties can lead evidence to that effect. The defendants have claimed amendments in para 23 regarding the execution of the mortgage- deed. However, the trial Court did not allow this amendment to be added in view of an application 40 - C having been rejected on 17-2-1989. The defendants had further claimed amendment to para 11 of he written statement. But the trial Court again rejected it in view of the admission of the defendant on 6 4-1983 and 7-12-1985.