PRASANT CHANDRA SEN Vs. UNITED COMMERCIAL BANK

JUDGEMENT

(1.) This appeal is arising out of an order passed and judgment delivered by Mr. Justice Salil K. Roy Chowdhury on the 27th April, 1980 dismissing an application for amendment of written statement filed by defendant No. 2. It appears that a suit was filed in this case by the United Commercial Bank, the plaintiff on the 22nd June, 1970 against the principal debtor, which was a company being wound up by the Company Court by an order dated the 23rd July, 1979. Subsequently the plaintiff had obtained leave under Section 446 of the Companies Act, 1956 to continue the suit against the Official Liquidator, so far as defendant No. J was concerned which was the company in liquidation and by an order dated 3rd Dec., 1979 such leave was granted and the plaintiff took out an application under Chap. 13A of the Original Side Rules of the Calcutta High Court for summary judgment. The defendant No. 2, the present appellant also took out an application for particulars of the plaint as well as leave to file the written statement. Both these applications had appeared before the learned trial Judge and by an order dated the 15th Feb., 1980 the hearing of the suit was expedited and the defendant No. 2 was directed to file its written statement within one week from date, cross order was given for discovery. Direction was given for inspection forthwith thereafter and the suit was directed to appear in the list for hearing irrespective of part heard on the 5th March, 1980 at the top of the list. The suit duly appeared in the list but the defendant No. 2 had asked for time on that occasion as he could not discover the documents and the time was granted. On the 31st March, 1980, an application, resulting in the order of the learned trial Judge, was made by defendant No. 2 asking for leave to amend the written statement. In this connection, it would he appropriate to state, as we have mentioned, that the suit was against two defendants, viz., defendant No. 1 which was a company in liquidation and the defendant No. 2 who was the guarantor. The suit was for money claim against the company in liquidation and it was alleged that the defendant No. 2, the present appellant had guaranteed the repayment, in writing furnished to the plaintiff, of the outstanding dues of the plaintiff from the defendant No. I in the account. We may incidentally point out that it appears that initially perhaps the plaintiff had contemplated to institute the suit against four defendants because in para 2 of the plaint it was stated: "The defendants Nos. 3 and 4 were at all material times and are the Directors of the defendant-company." It was thereafter stated that the defendant No. 2 too was a Director of the defendant-company. But the suit as filed does not contain any allegations, as appearing from the Paper Book, against defendants Nos. 3 and 4, who were described to be the other Directors of the company. Be that as it may, the suit was filed for certain money in cash credit account against the defendant No. 1 and defendant No. 2 as guarantor. In the written statement filed by the defendant No. 2 it was stated in para 8 as follows:

(2.) In the amendment which the defendant No. 2 was seeking in the application before the learned trial Judge, the defendant No. 2 wanted to plead as follows:

(3.) From the judgment, it appears, the learned trial Judge was of the view that this application was made belatedly to defeat the claim of the plaintiff. Secondly, the learned trial Judge was of the view that this defence was inconsistent with the defence already taken by the defendant No. 3. It further appears that the learned trial Judge was of the view that version sought to be pleaded in the written statement was in the words of the trial Judge "tissue of lies thought out by the defendant No. 2 and his lawyers only to delay the matter as long as possible". The learned trial Judge was of the view that this was a frivolous application and if such an application was allowed no suit could be heard. The learned trial Judge further emphasised that as the company was in liquidation, the matter should be heard expeditiously. We may incidentally point out that it is true that the hearing in Company matters particularly the companies which are in liquidation should be done expeditiously but it is not a suit by a company, in liquidation, seeking to recover money from its debtor for liquidation of its debts. It is a suit against 'he company in liquidation and in respect of which the directors of the company, which is in liquidation, were being sought to be made liable as guarantors. The propriety of the said decision of the learned trial Judge refusing to allow the amendment is the subject matter of appeal before us.