IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 246 of 2009(D)
1. E.S.JOSE,S/O.SOLOMON,CHAIRMAN &
... Petitioner
2. CHERRY BABU, FATHIMA CHURCH LANE,
Vs
1. M/S.ORIENTAL BANK OF COMMERCE, BRANCH M.
... Respondent
2. THE KERALA TIMES, A DAILY WORKING UNDER
3. MS.WINNIE ABRAHAM, SECRETARY, KERALA
For Petitioner :SRI.N.N.SUGUNAPALAN (SR.)
For Respondent :SRI.SUBAL J.PAUL
The Hon'ble MR. Justice HARUN-UL-RASHID
Dated :16/09/2010
O R D E R
HARUN-UL-RASHID, J.
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W.P.(C).No.246 Of 2009
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Dated this the 16th day of September, 2010.
J U D G M E N T
The petitioners are the additional defendants 3 & 4 in
O.S.No.190 of 2000 on the file of the Sub Court, Ernakulam. Suit
was filed for a prohibitory injunction restraining the defendants
namely, respondents 2 & 3 herein, from alienating the plaint
schedule properties hypothecated in favour of the bank. The
plaintiff bank filed I.A.No.1254 of 2002 under Order VI Rule 17
of the Code of Civil Procedure for amendment of the plaint.
Plaintiff sought to amend the plaint by incorporating a money
claim. Proposed amendment is for inserting necessary averments
for realisation of money due from the defendants. In the relief
portion by way of amendment the plaintiff claimed recovery of
Rs.5,48,918/- from the defendants. By the amendment the
plaintiff further wanted to implead additional defendants 3 & 4,
who according to the plaintiff are the guarantors. The plaintiff
averred that the amendment is necessary for avoiding multiplicity
of suits.
W.P.(C).No.246 Of 2009
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2. The petitioners opposed the prayer. They pleaded that
the suit was for injunction simplicitor and by proposed
amendment the plaintiff wants to convert th suit into a money
suit and that in the nature of the amendment proposed the
nature and character of the suit will be changed. It is also
contended that money claim has already become time barred and
the amendment proposed is for realising time barred debt.
3. The civil court considered the contentions raised by
both sides. The court found that the plaintiff issued notice on
4.3.2000 calling upon the defendants in the suit to pay the debt.
The civil court in paragraph 7 examined the question as to
whether the proposed plaint claim is barred by limitation or not.
The court found that even if the amendment is allowed the claim
will be within the period of limitation of three years, that the
amendment petition was filed on 1.4.02, i.e., within three years
from the date of arising of cause of action of the suit. The civil
court also examined the contention of the writ petitioners as to
whether the proposed amendment will change the character and
nature of the suit. The court observed that from the plaint it can
W.P.(C).No.246 Of 2009
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be seen that the amount is due from the defendants and when
the defendants tried to alienate the property the suit for
injunction is filed expressly reserving the plaintiff’s right to sue
for realisation of the amount from the defendants. The court also
observed that the plaintiff now thought it better to implead the
guarantors and to amend the plaint for recovery of the amount
due from them. The court also noticed that notice was issued to
the present defendants and proposed defendants. the court held
that in view of the contention of the defendants and in order to
determine the real question in controversy between the parties
the plaintiff wants to amend the plaint and incorporate money
claim. By doing so, it cannot be said that the nature and
character of the suit substantially change. The court is of the
view that the proposed amendment is only a different or
additional approach to the same facts and the amendment is
necessary for determination of the real controversy between the
parties. The court also relied on the decision of the Apex Court in
Pankaja v. Yellappa (2004 (3) KLT (SC) SN 50). The Apex
Court observed that even in a case where the amendment would
W.P.(C).No.246 Of 2009
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save the period of limitation in such cases also amendment can
be allowed. In this case, such a situation does not arise. Here
the amendment sought for recovery of money is within the period
of limitation. The amendment is necessitated also for avoiding
multiplicity of suits as well. In these circumstances, the order
passed by he court below allowing the amendment is valid. It is
made clear that the finding regarding the question of limitation is
entered for the consideration of the present application for
amendment. The question as to whether the suit is barred by
limitation or not shall have to be considered in detail at the time
of trial of the suit. So, the question as to whether the suit is
barred by limitation is left open to be decided during the trial of
the suit. The petitioners are not entitled to any relief.
Writ petition is disposed of with the above observation.
HARUN-UL-RASHID,
Judge.
bkn/-