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Modern United Traders Firm Vs. Ramkisan Narayan Prasad Firm and ors. - Court Judgment

LegalCrystal Citation
SubjectCommercial
CourtOrissa High Court
Decided On
Case NumberCivil Revn. No. 587 of 1980
Judge
Reported inAIR1986Ori124
ActsCode of Civil Procedure (CPC) , 1908 - Order 6, Rule 17; Orissa Money-Lenders Act
AppellantModern United Traders Firm
RespondentRamkisan Narayan Prasad Firm and ors.
Appellant AdvocateS. Mohapatra and ;G.N. Mohapatra, Advs.
Respondent AdvocateK. Kar, Adv.
DispositionRevision allowed
Excerpt:
.....assurance co. ltd. v birendra mohan de, 1995 (2) gau lt 218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. - it is well settled that it is open to the plaintiff to reduce his claim in the suit at any time. it is also well settled that averments in the plaint do not get automatically established unless the defendants admit the same......amendment of the plaint.2. the petitioner filed the suit for recovery of rs. 42,844,00 from the opposite parties, inter alia on the allegations that the said amount is due from the defendants (opposite parties) on the khata account opened by them with the petitioner-firm. the petitioner further alleged that on 16-2-1971 opposite party no. 3, babulal mahawar came to the petitioner-firm and calculated the amount outstandingon the khata account to be rs. 36,382.92. he paid rs. 2,400.00 on that day leaving and promised to pay the balance amount of rs. 33,982.92 paise. according to the petitioner, it was agreed between the parties that the opposite parties would pay interest at the rate of 9 per cent per annum on the outstanding dues. calculated at that rate the amount due towards interest.....
Judgment:
ORDER

D.P. Mohapatra, J.

1. The plaintiff in O. S. No. 29 of 1974-III in the court of the Subordinate Judge, Bhadrak is the petitioner in this revision challenging the order dated 21-8-1980 rejecting his petition for amendment of the plaint.

2. The petitioner filed the suit for recovery of Rs. 42,844,00 from the opposite parties, inter alia on the allegations that the said amount is due from the defendants (opposite parties) on the khata account opened by them with the petitioner-Firm. The petitioner further alleged that on 16-2-1971 opposite party No. 3, Babulal Mahawar came to the petitioner-Firm and calculated the amount outstandingon the Khata account to be Rs. 36,382.92. He paid Rs. 2,400.00 on that day leaving and promised to pay the balance amount of Rs. 33,982.92 paise. According to the petitioner, it was agreed between the parties that the opposite parties would pay interest at the rate of 9 per cent per annum on the outstanding dues. Calculated at that rate the amount due towards interest came to Rs. 8,861.08. Thus the total amount claimed from the opposite parties was Rs. 42,844.00. The opposite parties filed their written statements denying the claim of the petitioner.

2A. On the pleadings of the parties the trial court framed several issues. Before commencement of hearing the petitioner filed an application under Order 6, Rule 17 Civil Procedure Code for amendment of the plaint. The substance of the amendment sought was to reduce the rate of interest from 9 per cent to 6 per cent per annum and to make consequential changes in the total amount claimed in the suit reducing the same from Rs. 42,844.00 to Rs. 39,890.30. The amendment was objected-to by the opposite parties mainly on the ground that it is nothing but an attempt of the plaintiff to save the suit from the rigours of the provisions of the Orissa Money Lenders Act. The trial court rejected the petition for amendment on the groung that it changes the nature of the suit as the petitioner wants to change the suit based on a loan to one based on a khata account and if the amendment is allowed, the opposite parties are likely to be prejudiced.

3. As stated earlier, the only amendment the petitioner seeks to make relates to the rate of interest on the principal amount, reducing the same from 9 per cent to 6 per cent per annum. It is well settled that it is open to the plaintiff to reduce his claim in the suit at any time. By merely making averments in the pleadings the nature of the transaction between the parties is not changed. It is also well settled that averments in the plaint do not get automatically established unless the defendants admit the same. It is always open to the opposite parties to deny any assertion in the plaint and establish by evidence that the transaction in fact amounts to a loan and attracts the provisions of the Orissa Money Lenders Act. It is not the purpose of the Court to catch any party unawares or to punish a party for his mistake, negligence or inadvertence. It is his duty to determine the true nature of the transaction and to do justice between the parties.

4. In this view of the matter, the apprehensions expressed by the court below that the proposed amendment will change the nature of the suit and the opposite parties will be prejudiced thereby are unfounded and he has erred in rejecting the petition for amendment of the plaint. Accordingly, I allow this revision petition, set aside the impugned order and allow the application for amendment of the plaint. Both the parties are directed to appear before the court below on 12th of March, 1984 for receiving appropriate directions.


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