DENA BANK Vs. GAUTAM RATILAL SHAH

JUDGEMENT

(1.) This appeal is preferred against the decision given by the Single Judge on plaintiffs Chamber Summons No. 571 of 1982 taken out by them in Suit No. 1975 for amendment of the plaint. By a brief order the learned Single Judge came to observe that since the amendment sought for the Chamber Summons sought to introduce a cause of action or cause of action different from the ones to be found different in the plaint, amendment ought not to be allowed. Accordingly, the Chamber Summons was directed to stand dismissed but with no order as to cost. In order to appreciate the controversy between the parties a few facts may be briefly stated.

(2.) In 1975 the appellants who are a nationalised Bank and who will hereinafter be referred to as the "Plaintiffs" filed a suit against the four Respondents who will hereinafter be referred to as "the Defendants" on promissory notes executed on 31st January, 1973 by the defendants .The suit was one under Order XXXVII of the Code of Civil Procedure and in the plaint an amount of Rs. 13,85,237.37 was claimed with further interest on a slightly lesser amount at 10 per cent per annum. In the body of the plaint it is set out that the loan was given to Shah Frozen Foods Private Ltd. and that in respect of certain credit facilities given to the said Company and money advanced thereon the said company as well as the defendants had jointly and severally executed a demand promissory note. Amounts due from the said Company in respect of two of its accounts have thereafter been mentioned and after setting out the correspondence the plaintiffs have claimed the aforesaid amount contending that the suit is one within Order XXXVII of the Code of Civil Procedure and the reliefs claimed therein fall totally within the ambit of the said Order. It may be mentioned further that in the list of documents annexed to the plaint one finds reference only to the promissory notes, letters between the plaintiffs and the said Company and thereafter between the legal advisers of the plaintiffs an the defendants and /or their legal advisers.

(3.) After the defendants to the suit were served with the writ of summons, they find their appearance within the time permitted by the rules with the result that the plaintiffs took out a Summons for judgment. The said summons for judgment was duly served upon the advocates representing the defendants and in those proceedings affidavits were filed by the several defendants. The stands taken by the defendants, were not identical but at least in the affidavit filed on behalf of the defendant No. 2 but more particularly in that filed on behalf of defendants No. 3 and 4 it was contended that the suit simpliciter upon the promissory notes was incomplete and that the defendants were in the position of guarantors, the principal debtor being the said Company. It was also urged in the affidavit in reply and particularly in that filed by defendants Nos. 3 and 4 that apart from the promissory notes the defendants had executed various documents, including a deed of guarantee and it was contended that the promissory notes and the deed of guarantee as well as the deed of hypothecation were required to be considered together. In their affidavit in rejoinder it was contended on behalf of the plaintiffs, by the Assistant General Manager that the suit was based on promissory notes only. The defendants contention that they were entitled to inspection of the deed of hypothecation or the letter of continuity (guarantee) was disputed. It was emphasised that the plaintiffs suit was based only on the negotiable instruments, viz.,the two promissory notes and not on the guarantee.