CANARA BANK Vs. BANK OF RAJASTHAN LIMITED

JUDGEMENT

(1.) This revisional application under Article 227 of the Constitution of India is directed against the order No.61 dated 14.07.2005 passed by Sri M. M. Sarkar learned Judge 13th Bench, City Civil Court, Calcutta in Money Suit No.405 of 1999.

(2.) The case of the petitioner/plaintiff Canara Bank is that respondent No.1 Bank of Rajasthan Limited on 21st March, 1996 presented in the usual course of business through clearance a demand draft having leaf serial No. MDEB/C 405197 and bearing No.600402 dated 19.03.1996 for Rs.4 lakhs purportedly issued by Bhora Branch (Bihar) of the petitioner bank apparently in favour of respondent No.2 Garg Trading Company and that the petitioner in good faith honoured the said draft and paid a sum of Rs.4 lakhs to respondent No.1. In and about July 1996 at the time of reconciliation of the accounts it was detected that no such demand draft dated 19.03.1996 was issued from the said branch and that on scrutiny it came out that the signatures alleged to be manager and authorized signatory of the plaintiff bank were forged and that the said leaf having serial No.405197 was reported to be lost from the said Bhora Branch sometime in the end of 1995 and that after detection of the said fraud the plaintiff/petitioner asked the respondent No.1 bank to reimburse the said sum of Rs.4 lakhs which was denied and thereafter a complaint lodged with Central Bureau Investigation was proceeding and that the petitioner bank accordingly filed the said money suit being No.405 of 1999 against both the respondents demanding refund of principal amount of Rs.4 lakhs with interest. The O.P./defendants appeared in the said Money Suit and contested the same. After closing of evidence of both sides when the matter was fixed for argument it came out on scrutiny of papers that there were certain factual mistakes committed in the plaint filed by the petitioner bank and the some of the dates were not tallying with the evidence on record and that there was also wrong pleading regarding the cause of action and accordingly the petitioner/plaintiff filed a petition of amendment in three places as per schedule of amendment of the said petition of amendment. Learned Trial Court allowed the said petition in part and only allowed item No.1 of the schedule of the amendment and refused amendment relating to item Nos. 2 and 3 in the schedule. Learned Advocate Mr. Sabyasachi Bhattacharyya assisted by learned Advocate Mr. Bhaskar Mukherjee for the petitioner/plaintiff has submitted that as per proviso of order 6 Rule 17 C.P.C. no plaint for amendment shall be allowed after the trial is commenced, unless the Court comes to the conclusion that in spite of due diligence, a party could not have raised the matter before the commencement of trial, is not applicable in this case as this is an old case of 1999 and those amendments came into force with effect from 1st of July, 2002. In this connection he has also raised a case law reported in 2007 (1) SCC page 765.

(3.) He has further submitted that the learned Trial Court refused amendment of item No.2 and 3 illegally in coming to the conclusion that the amendment of item No.2 was sought for without producing any material on record though in fact evidence tendered on behalf of the petitioner was already on record in support of the said item No.2.