VIJAY KUMAR Vs. STATE BANK OF INDIA

JUDGEMENT

(1.) THIS revision petition under Article 227 of the Constitution of India has been filed against the impugned order dated 8.10.2005 passed by the learned District Judge, Faridkot, whereby the application filed by the respondent-State Bank of India under Order 6 Rule 17 of the Code of Civil Procedure ('CPC' for short) for amendment of the plaint and under Order 41 Rule 27 CPC for production of additional evidence has been allowed.

(2.) THE plaintiff-respondent State Bank of India ('Bank' for short) filed a suit for recovery of Rs. 1,71,565/- from the defendants-petitioners. It was alleged that Des Raj Chawla (defendant No. 1-since deceased and now represented by his LRs) was working as an Accountant with the Bank at Baghapurana during the period from 1987 to 1991. His sons Vijay Kumar (defendant No. 2), Vinod Kumar (defendant No. 4) and defendants No. 6, 7 and 8 were maintaining accounts with the Bank. The defendants conspired amongst themselves to defraud the Bank. They committed fraud to the extent of Rs. 2,06,700/-. The defendants gave various cheques to the plaintiff-Bank at Baghapurana and Des Raj Chawala (since deceased) unauthorisedly purchased the same and gave credit to the payees i.e. defendants No. 2 to 8 in their respective accounts and they withdrew the amount from their respective accounts. Thereafter, Des Raj Chawla (since deceased) is alleged to have destroyed these cheques or managed that they are not dispatched for collection or he destroyed the advices of dishonour of cheques received from the drawee Bank so as to suppress the fraud committed by him. On this account the Bank was defrauded to the tune of Rs. 2,05,760/-. It is also alleged that Des Raj Chawla (since deceased) had availed a loan from the State Bank of India Cooperative Society, Muktsar and he was repaying the same in installments of Rs. 470/- per month. He issued cheques dated 25.1.1991 and 25.2.1991 for an amount of Rs. 470/- each in favour of the said Co-operative Society and requested the said Society to purchase these cheques which request was acceded to by the Society and these cheques were purchased vide DD No. 2900 and 3227/-. However, when these cheques were received by the plaintiff-Bank, Baghapurana for actual payment, defendant No. 1 destroyed the same and defrauded the Bank of Rs. 940/-. In this manner, the defendant No.1 is stated to have committed fraud of Rs. 2,06,700/- i.e. Rs. 2,05,760/- by purchase of cheques from defendants No. 2 to 8 and then destroying the cheques or by not dispatching them for collection or destroying the advices of dishonour of cheques received from drawee Bank and also by purchase of cheques of Rs. 940/- for the installments given to the Cooperative Society which works out Rs. 2,06,700/-. The suit was contested by the defendants on various grounds. The learned Civil Judge (Junior Division), Moga, vide judgment and decree dated 16.2.2001 dismissed the suit of the plaintiff-Bank. The plaintiff-Bank filed an appeal against the aforesaid judgment and decree dated 16.2.2001 before the learned District Judge, Faridkot. During pendency of the appeal, the plaintiff-Bank filed an application for amendment of the plaint and for grant of permission to lead additional evidence which as already noticed has been allowed by the impugned order, which is assailed by the defendants- petitioners.

(3.) I have given my thoughtful consideration to the contentions of the learned counsel for the petitioners. As has already been noticed, the suit of the plaintiff-Bank for which the Bank is stated to have been defrauded has been dismissed by the learned trial court on 16.2.2001. During the pendency of the appeal before the District Judge, the Bank filed an application for amendment of the plaint and for grant of permission to lead additional evidence. The case set up by the Bank is that fraud had been committed by Des Raj Chawla which was detected by the Investigating Authority of the Bank vide inspection report dated 15.4.1991 which was received by the plaintiff-Bank on 27.5.1991. It is stated that due to inadvertence on the part of the counsel for the Bank, the said report could not be proved in the trial court. Besides, in para No. 15 of the plaint, the date of knowledge of detection of fraud to the plaintiff-Bank had been wrongly mentioned as 15.4.1991 instead of 27.5.1991 which, it is stated, had occurred due to a typographical mistake or by oversight. It is further case of the Bank that the relevant record regarding the fraud committed was with the Investigating authorities and the plaintiff- Bank was not in the knowledge of the admission made by deceased Des Raj Chawla on 20.4.1991 where he had confessed his guilt of committing the fraud with the Bank. Therefore, the Bank wants to examine the attesting witnesses of the confessional statement dated 20.4.1991 of Des Raj Chawla. Besides, after the transfer of the suit Vijay Kumar (petitioner No. 1) one of the legal heirs of deceased Des Raj Chawla gave an affidavit in the Bank on 9.5.1997, vide which he undertook to pay the amount outstanding against his father Des Raj Chawla. Accordingly, on 13.8.1998, Vijay Kumar (petitioner No. 1) paid Rs. 58,709.25 and Rs. 1,07,432/- in cash to the plaintiff-Bank on account of fraud money outstanding against his father Des Raj Chawla. The plaintiff-Bank also wants to prove the said vouchers regarding the deposit of the aforesaid amounts by Vijay Kumar (petitioner No.1) which came into existence after the filing of the suit. These evidences, it has been stated are very material for the just decision of the case. The objection of the petitioners to the said application is that the admission of date of knowledge of alleged fraud as 15.4.1991 by the plaintiff- Bank is very material inasmuch as the suit is barred by time as it was filed on 29.4.1994. Therefore, the plaintiff-Bank is not to be allowed to fill up the lacunae and withdraw the admission regarding the date of knowledge about the alleged fraud so as to bring the suit within the period of limitation. In fact even the evidence led by the plaintiff-Bank shows that the alleged fraud came to its knowledge on 29.5.1990 and the plaint and the replication are silent with regard to receipt of the inspection report by the Bank on 27.5.1991. The said objections as raised by the petitioner, in my view, are not of much significance. The learned District Judge has observed that the inspection report dated 15.4.1991 was received in the Bank on 27.5.1991 and due to inadvertence on the part of the counsel for the Bank, the said report could not be proved in the trial court which has been held to be a typographical error or oversight. The proposed amendment has been held to be essential as it would help the Court in deciding the case in a just and proper manner. The Photostat copy of the inspection report was produced before the learned District Judge and it was observed that the same showed that it had been received by the plaintiff-Bank on 27.5.1991 which could not be proved by the plaintiff-Bank in the trial court. The suit has been filed by the plaintiff-Bank on 29.4.1994 and if the date of knowledge is taken as 27.5.1991, the same would be within time. In the matter of the suit being barred by limitation on account of amendment having been allowed, it may be noticed that the Supreme Court in the case of Pankaja and another v. Yellapa (D) by LRs and others, 2004(3) RCR(Civil) 723 : AIR 2004 SC 4102 observed that there is no absolute rule that in every case where a relief is barred because of limitation an amendment should not be allowed.