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HDFC BANK LTD. v. ASHAPURA MINECHEM LTD. - (High Court of Bombay) (18 Jan 2017)

Amendment application should be normally granted unless by virtue of amendment, nature of suit changed or prejudice caused to Defendant

MANU/MH/0044/2017

Civil

Petitioner is objecting to the Order passed by Chairperson of Debt Recovery Appellate Tribunal rejecting appeal preferred by Petitioner-original applicant challenging the Order passed by the Debut Recovery Tribunal rejecting application seeking leave to amend the pleadings. Application tendered by the original applicant has been turned down by the Debt Recovery Tribunal by Order dated 6 October 2016, mainly on the ground that the proposed amendment under which the recovery of additional amount is claimed does not relate back to the date of presentation of original-application. Adverse order passed by Debt Recovery Tribunal was subject matter before Appellate Court where appeal has also been rejected. It is the case of Petitioner that, proposed amendment thus relates to the subject matter of suit and does not necessarily change character of the same.

It is true that, Petitioner does have an option of presenting separate recovery proceedings in respect of amount claimed under amended pleadings, however, it cannot be controverted that, additional claim raised by introducing amended pleadings is part of same transaction or series of transaction which is subject matter of original application. Parties before the Tribunal are one and the same. Subject matter i.e. the controversy before Tribunal is relating to same set of transaction additional sum that has been claimed under amended application is part of same series of transactions, which is subject matter of proceedings.

In matter of Mount Mary Enterprises Vs. Jivratna Medi Treat Private Ltd, reported in (2015) 4 SCC 182, Apex court has held that, amendment application should be normally granted unless by virtue of amendment nature of the suit is changed or some prejudice is caused to the defendant. In the instant matter, nature of suit or proceedings pending before Debt Recovery Tribunal does not undergo any change, even if amendment as requested by Petitioner is allowed. Permitting such amendment causes no prejudice to the other side.

Even if it is assumed that proposed amendment if permitted would relate back to date of suit or original application, since defence of limitation is neither raised nor is likely to be defeated in original application, aforesaid objection for consideration of application for amendment of pleadings is of little consequence and does not deserve consideration. It is also permissible for Courts to declare, while permitting amendment of pleadings, that such amendment shall not relate back to date of suit.

Amendment application tendered by Petitioner original applicant ought to be allowed. It would be open for Respondent to raise all defences permissible in law while opposing reliefs sought by way of amended pleadings. Claim raised in original application by Petitioner until the date of presentation of original-application and claim raised by virtue of amendment after presentation of such application is separable and it would be open for Respondent to raise objections touching the merits of claim before Tribunal and question of permissibility to grant claim raised by way of amended pleadings. Order dated 28th August, 2014 rejecting application seeking amendment to original application and Order dated 6th October, 2016 passed by Debut Recovery Appellate Tribunal confirming said Order are quashed. All defences available in law for the respondent are specifically kept open. It would be open for Respondent to present written statement controverting amended original application.

Relevant : Mount Mary Enterprises Vs. Jivratna Medi Treat Private Ltd, reported in (2015) 4 SCC 182

Tags : AMENDMENT   APPLICATION   ENTITLEMENT  

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