SOSAMMA ABRAHAM v. STATE BANK OF INDIA

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE N.NAGARESH ``` ``` FRIDAY, THE 16[TH] DAY OF FEBRUARY 2024 / 27TH MAGHA, 1945 ``` ``` OP (DRT) NO. 511 OF 2023 AGAINST THE ORDER DATED 14.09.2023 IN I.A No.878/2023 IN TA No.1247/2016 OF DEBT RECOVERY TRIBUNAL- 2, ERNAKULAM PETITIONER/DEFENDANT IN T.A/DEFENDANT IN O.A: ``` ``` SOSAMMA ABRAHAM AGED 65 YEARS, W/O.LATE ABRAHAM, CHEMPITHARAYIL HOUSE, M.C.ROAD, PALLOM POST, NATTAKOM VILLAGE, KOTTAYAM DISTRICT, PIN – 686 007. ``` ``` BY ADVS. ``` ``` S.SUDHISH KUMAR P.KURUVILLA JACOB K.B.DAYAL SIBI KARUN REMYA MURALI RESHMA .K HARIKRISHNA DAYAL K. GOPIKA.N.NAIR ``` ## **`RESPONDENTS/APPLICANT IN T.A/APPLICANT IN O.A:`** ``` STATE BANK OF INDIA REPRESENTED BY ITS MANAGER, (SIB DIVISION), KOTTAYAM MAIN BRANCH, KOTTAYAM DISTRICT, PIN – 686 002. ``` ``` BY ADV S.LAKSHMY ``` ``` THIS OP (DEBT RECOVERY TRIBUNAL) HAVING COME UP FOR ADMISSION ON 16.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` OP(DRT) No. 511 of 2023 : 2 : ## **JUDGMENT** Dated this the 16[th] day of February, 2024 The petitioner, who is the defendant in T.A.No.1247 of 2016 on the file of the Debts Recovery Tribunal-II, Ernakulam, has filed this OP(DRT) seeking to set aside order dated 14.09.2023 in I.A No.878 of 2023 in TA No.1247 of 2016 on the file of the Debts Recovery Tribunal-II, Ernakulam. 2. By order dated 14.09.2023, the Debts Recovery Tribunal-II, Ernakulam, rejected the petitioner’s application I.A.No.878 of 2023 for amendment of the written statement so as to include a counter claim. The Tribunal found that the written statement was filed in the year 2006 and the additional written statement was filed in the year 2015. The petitioner has filed the application after lapse of several years, without assigning any valid ground for such inordinate delay in filing the counter claim. OP(DRT) No. 511 of 2023 : 3 : 3. Counsel appearing for the petitioner would submit that by I.A.No.878 of 2023, the petitioner proposed to include certain counter claims. In fact, the petitioner had earlier approached this Court filing W.P.(C) No.14771 of 2007, which was disposed of on 29.05.2007 as per Ext.P3 judgment. In the said writ petition the petitioner raised her grievance that the respondent-Bank has, without authorisation, made payment from the loan account of the petitioner to suppliers of raw materials / goods to the petitioner’s business unit. If the Bank has made payment without proper authorisation, it is for the Bank to account for the same. This Court noted that DRT has rejected the petitioner’s application only because the petitioner has not furnished details. Therefore, this Court disposed of the writ petition directing the respondent-Bank to submit entire loan files before the Debts Recovery Tribunal for perusal. 4. In spite of the directions given in Ext.P3, the Bank refused to make available the records. Even the Debts Recovery Tribunal passed an order for production of those OP(DRT) No. 511 of 2023 : 4 : records only in the year 2023. The respondent filed an affidavit disclosing certain information. The petitioner could not have made a proper counter claim without perusing the files, which were directed to be produced by this Court as per Ext.P3 judgment. In these circumstances, the delay on the part of the petitioner for filing amendment application, is well justified. 5. The Counsel for the petitioner relied on the judgment of the Hon’ble Apex Court in _**Ashok Kumar Kalra v. Wing Cdr. Surendra Agnihotri and others** [2020 (2) SCC 394]_ _**,**_ in which it was held that a claim can be filed if two conditions are met; first, its cause of action complies with Order VIII Rule 6(A) of the Code of Civil Procedure and second, it is filed within the period specified under the Limitation Act. In view of the judgment of the Hon’ble Apex Court, the Debts Recovery Tribunal ought to have permitted amendment to the written statement. 6. The Counsel for the petitioner also relied on the judgment of the Apex Court in _**State of Bihar and others v.**_ OP(DRT) No. 511 of 2023 : 5 : _**Modern Tent House and another;** [(2017) 8 SCC 567],_ wherein the Hon’ble Apex Court has held that when the amendment does not introduce any new defence compared to what has been originally pleaded in the written statement, taking into consideration the requirement to avoid multiplicity of proceedings, such amendments can be allowed. The interest of justice demands that the petitioner should be allowed to amend the written statement, contended the Counsel for the petitioner. 7. Standing Counsel entered appearance on behalf of the respondent and resisted the OP(DRT). The Standing Counsel pointed out that the credit facility was given to the petitioner in the year 2003. The loan account was declared as NPA in the year 2005. The Bank filed OA No.6 of 2006 claiming Rs.13,11,736/- on 27.12.2005. Proof affidavit was filed on 21.02.2006 and written statement was filed on 07.05.2006. 8. Thereafter, a counter proof affidavit was filed on 12.09.2006. In 2017, amended proof affidavit was filed. The OP(DRT) No. 511 of 2023 : 6 : petitioner also filed counter proof affidavit on 11.10.2018. The petitioner has not explained the delay for making an amendment application at the fag end of the proceedings before the Tribunal. 9. The Standing Counsel further urged that the petitioner has an alternate remedy and therefore the O.P.(DRT) need not be entertained. The counter claim is hopelessly barred by limitation. The petitioner was aware of all the facts requiring to make amendments even at the time of filing the original proof affidavit in the year 2006. There is absolutely no explanation for the inordinate delay in filing an application for amendment at the fag end of the proceedings. The sole intention of the petitioner is to delay and defeat the recovery proceedings against the petitioner. The Standing Counsel representing the respondent also relied on the judgment of the Hon’ble Apex Court in _**Ashok Kumar Kalra** (Supra)._ 10. I have heard the learned Counsel appearing for the petitioner and the learned Standing Counsel representing OP(DRT) No. 511 of 2023 : 7 : the respondent. 11. The Credit Facility was extended to the petitioner in the year 2003. The petitioner filed a written statement on 07.05.2006. Later, a counter proof affidavit was filed on 11.10.2018. The application for amendment was filed only on 09.02.2023. 12. A perusal of Ext.P4 affidavit filed in support of the amendment application would show that the petitioner is filing the counter affidavit, so as to get the rent of the building from 15.04.2004 to the day of filing of the written statement that is 07.05.2006. The petitioner is also claiming interest subsidy amount of Rs.4.5 lakhs from 31.10.2003 to 13.09.2005 @ 18% interest. The petitioner is also claiming profit of the defendant. All these factors / claims were purely within the knowledge of the petitioner, even from the very beginning. 13. The contention of the petitioner is that since the Bank has not made available records of the case pursuant to Ext.P3 judgment, the petitioner could not have made a OP(DRT) No. 511 of 2023 : 8 : proper claim. In spite of Ext.P3 judgment of this Court delivered on 29.05.2007, the Bank has produced the documents only now. Therefore, according to the petitioner, the delay in making counter claim is amply justified. 14. The Standing Counsel, on the other hand, would submit that all the documents relating to the O.A. filed in the Tribunal was produced along with the proof affidavit and amended proof affidavit. All the materials were available with the Debts Recovery Tribunal. The petitioner could have perused those documents and made her counter claim, which was not done. The respondent has filed a proof affidavit on 04.07.2023. In the proof affidavit, the respondent has stated that all the documents are already filed with the Debts Recovery Tribunal. Therefore, the filing of the affidavit by the respondent on 04.07.2023 will not give any excuse for the petitioner to file a belated application for amendment. 15. It is to be noted that the Hon’ble Apex Court has held in the judgment in _**Ashok Kumar Kalra** (Supra)_ that after filing of the written statement, it is open to plead a OP(DRT) No. 511 of 2023 : 9 : defence to a set off or a counter claim without the leave of the Court. However, any other pleadings sought to be filed after the written statement requires the leave of the Court. The Rule also confers the Court with a discretion to allow filing of a written statement or additional written statement within a period not exceeding 30 days. The Hon’ble Apex Court also held that it is important to appreciate that such subsequent pleadings or additional written statement may include a counter claim. This is because Rule 9 does not create a bar on the nature of claims that can be raised as subsequent claims. As long as the Court considers that it would be proper to allow a counter claim by way of subsequent pleadings, it is possible to file a counter claim after filing the written statement. 16. The argument of the petitioner is that Ext.P6 order of the Tribunal rejecting the petitioner’s application for amendment of written statement, has not considered any of these aspects as laid down by the Hon’ble Apex Court. It is to be noted that in the very same judgment, the Hon’ble Apex OP(DRT) No. 511 of 2023 : 10 : ## Court has held as follows: _37. In several cases, it is possible that the period of limitation for filing of counter-claims may extend up to a long period of time and prolong the trial. For instance, in a suit for declaration of title, the defendant may bring a counter-claim for possession of the immovable property based on previous possession. In terms of Order VIII Rule 6A, such a claim would be admissible as long as the dispossession had occurred before the filing of the written statement, or before the expiry of the time provided for filing of the written statement. However, as per the Limitation Act, such a claim would be valid even if it were brought within twelve years from the date of the defendant’s dispossession._ _In such a situation, it is possible that by the time the counter-claim is brought, the issues in the original suit have already been framed, the evidence led, arguments made, and the judgment reserved. Allowing a counter-claim to be filed at this stage would effectively result in a re-trial of the suit, since the Court would have to frame new issues, both parties would have to lead evidence, and only then would the judgment be pronounced. If this is permitted, the very purpose of allowing counter-claims, i.e. avoiding multiplicity of litigation, would be frustrated._ _20. We sum up our findings, that Order VIII Rule 6A of the CPC does not put an embargo on filing the counter-claim after filing the written statement, rather the restriction is only with respect to the accrual of the cause of action. Having said so, this does not give absolute right to the defendant to file the counter-claim with substantive delay, even if the limitation period prescribed has not elapsed. The court has to take into consideration the outer limit for filing the counter-claim, which is pegged till the issues are framed. The court in such cases have the discretion to entertain filing of the counter-claim, after taking into consideration and evaluating inclusive factors provided below which are only illustrative, though not exhaustive:_ _i. Period of delay._ _ii. Prescribed limitation period for the cause of action pleaded._ OP(DRT) No. 511 of 2023 : 11 : _iii. Reason for the delay. iv. Defendant’s assertion of his right. v. Similarity of cause of action between the main suit and the counter-claim. vi. Cost of fresh litigation. vii. Injustice and abuse of process. viii. Prejudice to the opposite party. ix. and facts and circumstances of each case. x. In any case, not after framing of the issues._ 17. The Tribunal, while considering the application of the petitioner, has noted that the petitioner has not advanced any valid ground for the inordinate delay in filing the counter claim. Going by the judgment of the Apex Court in _**Ashok Kumar Kalra** (Supra),_ I find that the period of delay, prescribed limitation period for the cause of action pleaded, reason for the delay, etc. are factors to be considered by a Tribunal / Court while entertaining an application for amendment. 18. In this case, O.A was filed as early in the year 2006. The proof affidavit and counter proof affidavit were initially filed in the year 2006. The amended proof affidavit and counter proof affidavit were filed during the years 2017 and 2018. The amendment sought by the petitioner is to OP(DRT) No. 511 of 2023 : 12 : claim amount which is allegedly due during the period from 15.04.2004 to 07.05.2006. In the afore circumstances, I find that there is unexplained and inordinate delay in seeking amendment and the Tribunal is justified in rejecting the application for amendment. The OP(DRT) is therefore dismissed. Sd/- **N. NAGARESH** **JUDGE** AMR OP(DRT) No. 511 of 2023 : 13 : ## **`APPENDIX OF OP (DRT) 511/2023`** ## **`PETITIONER’S EXHIBITS`** - **`Exhibit P1`** ``` A TRUE COPY OF O.A.NO.06/2006 FILED BY THE RESPONDENT BEFORE THE LEARNED DRT- II ,ERNAKULAM, AGAINST THE PETITIONER (WITHOUT ANNEXURES). ``` - **`Exhibit P2`** - **`A TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE PETITIONER IN T.A.NO.1247/2016 (O.A.NO.06/ 2006) BEFORE THE LEARNED DRT-II, ERNAKULAM.`** ``` Exhibit P3 ``` - **`A TRUE COPY OF THE JUDGMENT DATED 29.05.2007 IN WP(C)NO. 14771/2007 PASSED BY THIS HON'BLE COURT.`** ``` Exhibit P4 ``` - **`A TRUE COPY OF THE AFFIDAVIT AMENDMENT PETITION VIZ.,I.A.NO.878/2023 IN T.A.NO.1247/2016 O..A.NO6./2006 BEFORE THE LEARNED DRT-II, ERNAKULAM.`** ``` Exhibit P5 ``` - **`TRUE COPY OF THE CASH RECEIPT OF RS.19,000/- AND OF RS.250/-BY WHICH THE ABOVE AMOUNT WAS REMITTED FOR THE AMENDMENT APPLICATION.`** - **`Exhibit P5(A)`** - **`TRUE COPY OF REMITTED RECEIPT BEARING I.A.550/2023 DATED 14.02.2023 FOR AMENDED APPLICATION.`** - **`Exhibit P6`** - **`A TRUE COPY OF THE ORDER DATED 14.09.2023 DISMISSING THE AMENDMENT PETITION. VIZ I.A.NO.878/2023 IN T.A.NO.1247/2016 (O.A.NO.06/2006) PASSED BY THE LEARNED DRT-II ERNAKULAM.`**