DENA BANK Vs. BERTRAM SCOTT INDIA LTD

JUDGEMENT

(1.) This appeal arises out of an order passed by the learned Trial Judge dismissing an application filed by the plaintiff/appellant for amendment of the decree D/-21st Feb., 1979 passed in the Suit No. 276 of 1978.

(2.) The facts of this case are peculiar and it shows how a nationalised bank in our country functions while granting loans. We shall set out such facts from the application of the appellant-plaintiffs themselves.

(3.) Various properties belonging to the defendant were mortgaged in favour of the West Bengal Financial Corporation of India (hereinafter referred to as the said Corporation) to secure a loan by a registered indenture of mortgage on 9th Feb. 1972. The properties mortgaged were described in the several schedules to the said deed of mortgage. Thereafter with the object of creating a second mortgage in favour of the petitioner, an indenture of mortgage was created on 13th Feb. 1975. It is stated that this was done with the object of creating second mortgage in favour of the petitioner in respect of very same properties over which the said Corporation had first mortgage under the said Indenture D/-Feb. 9, 1972 and in this context reference is made to a Board Resolution D/-10th Oct. 1974 and Cl.3 of the recital of the agreement D/-13th Feb. 1975. It is stated that the parties all along had the intention that all the properties covered by the first mortgage would be the subject matter of the second mortgage. What actually happened was that in spite of such alleged object and intention, the schedule to the second mortgage did not include all the properties contained in the first mortgage. The plaintiff bank entered into a loan transaction involving several lakhs of rupees but they did not bother to check up the relevant schedule to the document. This "mistake" remained undetected even when the suit was filed against the defendant with the following prayers :