M. Dinesh v. S. Ramachandran and Others

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH** **MONDAY, THE 26TH SEPTEMBER 2011 / 4TH ASWINA 1933** **OP(C).No. 2389 of 2011(O)** **-----------------------------------OS.163/2008 of PRINCIPAL SUB COURT, PALAKKAD ..........................................................................................** ## **PETITIONER(S):** - **----------------------** **M.DINESH, S/O.M.R.KRISHNAN, AGED 40 YEARS, GEETHANJALI, 3/227, T.K.THARA, KODUVAYUR, CHITTUR TALUK, PALAKKAD - 678 101.** **BY ADV. SRI.JACOB SEBASTIAN** ## **RESPONDENT(S):** **-------------------------** **1. S.RAMACHANDRAN, AGED 48 YEARS, S/O.R.S.MANI IYER, "SURYA KIRAN", COLLEGE ROAD, PALAKKAD TALUK, PALAKKAD DISTRICT - 678 001.** **2. M/S.DAMPRG MEDIA PVT.LTD., IST FLOOR,** - **S.J.COMPLEX, R.S.ROAD, KOPPAM AMSOM, PALAKKAD TALUK, PALAKKAD DISTRICT - 678 001.** **3. S.AJITH, S/O.K.N.SUKUMARAN NAIR, DIRECTOR, M/S.DAMPRG MEDIA PVT.LTD., GEETHANJALI, T.K.THARA, KODUVAYUR P.O., PALAKKAD TALUK, PALAKKAD DISTRICT - 678 001.** **4. K.PRAVEENKUMAR, S/O.K.N.GOWTHAMAN, DIRECTOR, M/S.DAMPRG MEDIA PVT.LTD., "SREEKALA", VIVEKANANDA COLONY, KUNNATHURMEDU, PALAKKAD TALUK, PALAKKAD DISTRICT - 678 001.** **THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 26/09/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **DS** ## **OP(C).No. 2389 of 2011(O)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **P1: COPY OF THE I.A.NO.1479/2011 IN O.S.NO.163/2008 FILED UNDER ORDER VI RULE 17 C.P.C. IN THE COURT OF THE SUBORDINATE JUDGE OF PALAKKAD.** **P2: COPY OF THE COUNTER STATEMENT FILED BY THE 2ND DEFENDANT IN I.A.NO.1479/2011 IN O.S.NO.163/2008 OF THE COURT OF THE SUBORDINATE JUDGE OF PALAKKAD. P3: COPY OF THE ORDER DATED 30.05.2011 IN I.A.NO.1479/2011 IN O.S. NO.163/2008 OF THE COURT OF THE SUBORDINATE JUDGE OF PALAKKAD.** ## **RESPONDENT'S EXHIBITS: NIL** ## **/TRUE COPY/** ## **PA TO JUDGE** ## **DS** ## **THOMAS P.JOSEPH, J.** **==================================== O.P(C) No.2389 of 2011 ==================================== Dated this the 26[th] day of September, 2011** ## **J U D G M E N T** Exhibit P3, order passed by learned Sub Judge, Palakkad on 30.05.2011 on I.A. No.1479 of 2011 allowing amendment of plaint after the evidence was closed is under challenge. 2. According to the first respondent-plaintiff, second respondent, a Company availed a loan from State Bank of Travancore, Palakkad Branch with he and one Mariam Thankachan as guarantors. Second respondent did not repay the amount and hence the first respondent was constrained to close the loan account. Thereafter first respondent filed the suit for recovery of the amount from the second respondent-Company and its Directors including petitioner. Petitioner disputed his liability. Parties went to trial and adduced evidence. First respondent was examined as P.W.1. Then first respondent came with Ext.P1, application for amendment of plaint to incorporate paragraph 4A to contend that when the second respondent applied for loan from the State Bank of Travancore it was stipulated that the loan would be granted only if second respondent and its Directors **O.P(C) No.2389 of 2011** -: 2 :- guaranteed due repayment of the loan, petitioner and other Directors requested the first respondent to stand as a guarantor for the loan assuring that they would duly repay the loan and first respondent will not be put to any monetary loss. First respondent believed the same and on that assurance stood as a guarantor for the second respondent. 3. It is contended by learned counsel for petitioner that amendment is sought to circumvent the evidence that first respondent has given as P.W.1. Learned counsel has invited my attention to the evidence of the first respondent given in crossexamination as to the capacity in which petitioner signed Ext.A7, agreement (marked in the trial court). It is contended by the learned counsel that petitioner has signed the agreement only in his capacity as a Director and not in his personal capacity and hence there could be no personal liability for petitioner. It is also contended that notwithstanding that the request for amendment came after commencement of the trial, the proviso to Rule 17 of Order VI of the Code of Civil Procedure (for short, “the Code”) has not been complied. Learned counsel has placed reliance on the decision in **Reveajeethu Builders and Developers v. Narayanaswamy & Sons** ([2009] 10 **O.P(C) No.2389 of 2011** ## -: 3 :- SCC 84) to contend, under what all circumstances request for amendment could be allowed. 4. No doubt the request for amendment came after commencement of the trial and hence first respondent had to satisfy the proviso to Rule 17 of Order VI of the Code. This ## Court in **Eapen Antonry v. Joseph & Another** (2009 [1] ILR [Ker.] 712) has stated, under what all circumstances even a diligent party may omit to bring in sufficient materials in the pleadings and pointed out that probably it is when the party is in the box that he is alerted about the lack of pleadings and in such circumstance the court has to consider the request and pass appropriate orders. The decision of the Supreme Court relied on by learned counsel has stated the broad guidelines which the courts must bear in mind while considering the request for amendment. Precisely, the direction is that amendment should be necessary to settle the real dispute in controversy between the parties and parties seeking amendment must have acted with bona fides. Further aspect that the court must bear in mind is that amendment should not cause prejudice to the opposite party. Based on the above guidelines stated in the decision relied on by learned counsel, I shall consider whether **O.P(C) No.2389 of 2011** ## -: 4 :- request for amendment could have been allowed. 5. Learned counsel has given me a copy of the plaint. In paragraph 2 of the plaint it is stated that the first respondent and Mariam Thankachan executed the requisite documents for availing the loan by the second respondent and Mariam Thankachan mortgaged her property as collateral security for the loan availed by petitioner and respondent 2 onwards which was done by them only on the request and assurance given by petitioner and respondent 2 onwards that they will be paying the loan amount promptly and will not commit any default in discharging the liability and that the guarantors (first respondent and Mariam Thankachan) will not be put to any expense or loss. In paragraph 3 of the plaint it is stated that the entire loan amount was utilised by petitioner and respondent 2 onwards and that first respondent had only guaranteed due repayment of the loan amount by the petitioner and respondent 2 onwards who committed default in making repayment of the loan in spite of several and repeated requests made by the Bank and the first respondent. Thus the averments in paragraphs 2 and 3 in the plaint refer to the case of first respondent that petitioner and other Directors had offered to discharge the liability of the **O.P(C) No.2389 of 2011** ## -: 5 :- Bank. Therefore it is not as if by amendment an entirely different or new plea is sought to be introduced so that it could be said that petitioner is prejudiced by allowing the amendment. The question whether petitioner has signed the agreement in question in his capacity as Director or otherwise is a matter which the trial court has to decide. It is also for the trial court to decide whether the case pleaded by the first respondent in the plaint as originally filed and as amended that there was assurance on the part of petitioner to discharge the liability is acceptable or not, on the evidence on record. 6. Then the question is whether, trial having commenced learned Sub Judge was justified in allowing the amendment. There is no specific reference in the order to the application of the proviso to Rule 17 of Order VI of the Code. But there is some reference in paragraph 10 of the order to the contentions raised by petitioner that the application is highly belated. Necessarily, the contention raised by the petitioner was with reference to the filing of the application after commencement of the trial. Learned Sub Judge has also pointed out that application is highly belated but was of the view that the delay by itself is not a reason to refuse amendment. Learned ## **O.P(C) No.2389 of 2011** ## -: 6 :- Sub Judge was of the view that the inconvenience caused to the petitioner and other defendants by the delay in filing the application could be compensated by payment of costs. Accordingly the application was allowed on terms. 7. Learned Sub Judge has exercised his discretion in favour of allowing the amendment. Unless there is some patent illegality in the order or exercise of the discretionary power, I am not inclined to think that this Court under Article 227 of the Constitution is required to interference with the discretionary order passed by the learned Sub Judge. As such the order under challenge does not call for interference. In the light of what I have stated above the Original Petition does not merit consideration. Original Petition is dismissed. ## **THOMAS P. JOSEPH, JUDGE.** vsv