Skip to content


S.A.S. Lakshmanan Chettiar Vs. T.K. Kuruvilla - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKerala High Court
Decided On
Case NumberCivil Revn. Petn. No. 189 of 1958
Judge
Reported inAIR1961Ker169
ActsCode of Civil Procedure (CPC) , 1908 - Order 6, Rule 17
AppellantS.A.S. Lakshmanan Chettiar
RespondentT.K. Kuruvilla
Appellant Advocate P. Govindan Nair and; P.K. Kurian, Advs.
Respondent Advocate K.P. Abraham,; E.M. Jacob and; K.K. Poulose, Advs.
DispositionRevision dismissed
Cases ReferredCharan Das v. Amir Khan
Excerpt:
.....procedure, 1908 - pre-eminently case for exercise of power for allowing amendment - plaintiff who advanced money to defendant found not entitled to sue - hundies executed by defendant in favour of plaintiff for realisation of debt could not be put into action as they were insufficiently stamped - order allowing amendment for rectifying error necessary for purpose of determining real question in controversy between parties. - - the suit as originally framed was tor recovery of the money due under two bundles for rs, 9600a each executed by the defendant in favour of the plaintiff's brother george kuruvila and endorsed by the latter to the plaintiff. the defendant failed to act according to the representation and made use of the money not in furtherance of the floatation of the..........plaintiffs brother george kuruvilla in the management o the company and on that representation the plaintiff advanced rs. 19,200/- to the defendant through his brother george kuruvilla.the defendant failed to act according to the representation and made use of the money not in furtherance of the floatation of the company, but for his own personal needs. on the plaintiff repeatedly pressing for the money he was finally told on 28-2-1949 that as the business undertaking could not be got through the amount advanced would be repaid within 90 days. it was to secure the above debt that the two hundies were executed in george kuruvilla's name by the defendant.since the money as borrowed by the defendant from the plaintiff, the plaintiff was entitled to recover the same from the defendant with.....
Judgment:

Anna Chandy, J.

1. The revision petitioner is the defendant in O. S. No. 124 of 1956 of the Alleppey Sub-Court. The suit as originally framed was tor recovery of the money due under two bundles for Rs, 9600A each executed by the defendant in favour of the plaintiff's brother George Kuruvila and endorsed by the latter to the plaintiff. The defendant contended inter alia that the suit was not maintainable since the bundles which were insufficiently stamped were not admissible in evidence.

A preliminary issue was raised on this contention and after hearing both sides it was held that the suit was not maintainable as the claim basedon insufficiently stamped hundies could not be enforced in a Court of law. Though it was furthercontended that the only course open to the Court was to dismiss the suit as the plaintiff who was an endorsee of the hundies was not entitled to fall back upon any cause of action based upon the Originaldebt, the Court held that the plaintiff should be given an opportunity to amend the plaint if he sochose and seek appropriate reliefs on the basis ofsuch amendment. Two weeks' time was allowedfor applying for the amendment; That applicationwas opposed by the defendant. This revision is against the order allowing the amended plaint to be filed.

2. The relevant allegations in the amended plaint are made in paras 4 to 10. The gist of the allegations is that the defendant approached the plaintiff in 1946 for helping him with money for floating a company by name 'The Marine Industries' and undertook to associate the plaintiffs brother George Kuruvilla in the management o the company and on that representation the plaintiff advanced Rs. 19,200/- to the defendant through his brother George Kuruvilla.

The defendant failed to act according to the representation and made use of the money not in furtherance of the floatation of the company, but for his own personal needs. On the plaintiff repeatedly pressing for the money he was finally told on 28-2-1949 that as the business undertaking could not be got through the amount advanced would be repaid within 90 days. It was to secure the above debt that the two hundies were executed in George Kuruvilla's name by the defendant.

Since the money as borrowed by the defendant from the plaintiff, the plaintiff was entitled to recover the same from the defendant with interest. The cause of action for the suit is said to have been arisen on 28-6-1946 when the money was advanced and on 28-2-1949 and 31-5-1949 when the debt was acknowledged by the defendant in two letters.

3. The prayer for the amendment was opposed by the defendant on the following grounds:- (i) that it is not open to an endorsee of a negotiable instrument to base a claim on the original cause of action for the money and the amendment sought for changed the character of the suit, (ii) as the claim based on the original cause of action had already become barred it should not be allowed so as to deprive the defendant of the plea of limitation and (iii) that the prayer for amendment waa lacking in good faith as it was unduly delayed. These objections were overruled and the application was allowed on payment of Rs. 150/- as day costs to the defendant.

4. The only points urged before me are (i) that the amendment could not be allowed as the original plaint and the amended plaint are based on two distinct causes of action and it is not open for the plaintiff who brought the suit originally as endorsee of the hundies to base his claim on the original cause of action for the money, and (ii) that though under special circumstances amendment could be allowed even after the original claim had become barred, this is not a fit case for doing so because the fact that the suit was not maintainable as the hundies were insufficiently stamped was brought to the notice of the plaintiff as early as 4-12-1951 when the written statement was filed.

5. For evaluating the merits of these objections the allegations in the amended plaint regarding the circumstances in which the plaintiff happened to advance the amount to the defendant as well as the admissions made by the defendant in this written statement to the original plaint have to be considered. As mentioned earlier the plaintiff has definitely stated that the money was advanced by him to the defendant on 29-6-1946 and how the hundies came to be taken in 1949 in the name of his brother George Kuruvilla.

Though these facts were not stated in the original plaint and there was no necessity to state them in the suit based on the hundies the defendant has clearly admitted in para 4 (a) of the written statement that the amount was advanced by the plaintiff and also that it was because the plaintiff was then a Government Official it was agreed that the plaintiff's brother George Kuruvilla and another K. M. George should lend their names for and on behalf of the plaintiff.

It was further admitted that George Kuruvilla in whose name the hundies came to be executed later was only a name-lender and benamidar for the plaintiff. No doubt the defendant contended that the amount came to be advanced originally by the plaintiff and the hundies came to be executed in favour of George Kuruvilla later in pursuance of an agreement, the terms of which are different from those set up by the plaintiff in the amended plaint and that the claim is not enforceable as the plaintiff had not performed his part of the agreement. The truth of the respective allegations made by the parties as to the circumstances under which the amount came to he advanced and the maintainability or otherwise of the claim for the return of the amount are matters for decision in the suit and they have no bearing on the question whether the amendment is to be allowed or not.

6. The correctness of the position that it is not open to the endorsee of a negotiable instrument to base a claim on the original cause of action cannot be disputed. However that question is not an obstacle for allowing the amendment sought for. In this case it is common cause that the amount covered by the hundies was advanced by the plaintiff to the defendant in 1946 and the execution of the hundies about three years later on 28-2-1949 in favour of the plaintiffs brother George Kuruvilla was only for and on behalf of the plaintiff, and the plaintiff's claim for the amount is not as an endorsee of the hundies.

7. The learned counsel for the revision petitioner relied upon the observations made by the Privy Council in Ma Shwe Mya v. Maung Mo Hnaung, AIR 1922 PC 249 in support of his contention that in spite of the extensive powers given to the Court in the matter o amendment of plaint, one cause of action could not be substituted for a distinct cause of action by virtue of an amendment. The relevant portion is extracted below.-

'All rules of Courts are nothing but provisions intended to secure to the proper administration of justice and it is therefore essential that they should be made to serve and be subordinate to that purpose so that full powers of amendment must be enjoyed and should always be liberally exercised but none-the-less no power has been given to enable one distinct Cause of action to be substituted for another, nor to change, by amendment, the subject matter of the suit.'

The proviso to Section 53 of the old Civil Procedure Code which banned amendments resulting in conversion of suits of one character into a suit ot another and inconsistent character is omitted in the present Code and the powers of amendment under the present Code are much wider than they were under the old one. The only limitation on the powers of Courts in allowing amendments enunciated by the Supreme Court are as follows:-

'All amendments ought to be allowed which satisfy the two conditions (a) not working injustice to the other side, and (b) of being necessary for the purpose of determining the real questions in controversy between the parties. Amendments should be refused only where the other party cannot be placed in the same position as if the pleading had been originally correct, but the amendment would cause him an injury which could not be compensated in costs.' P. H. Patil v. K. S. Patil, (S) AIR 1957 SC 363.

In this case the amendment did not really introduce a new case and the written statement of the defendant itself showed that he was not taken by surprise and he did not have to meet a new claim set up for the first time after the expiry of the period of limitation. The cause of action with regard to the original consideration is one which is complete in itself and it was open to the plaintiff to have brought the suit on it independent of the hundies themselves.

8. Shri Govindan Nair for the revision petitioner relied upon the ruling reported in Ran-gayya Gowder v. Narayanaswami Gowder, 1958 Ker LJ 638 in support of the position that as a rule the Courts would decline to allow amendment if fresh suit on the amended claim would be barred by limitation on the date of the application. Courts have been liberally allowing amendments of barred claims if the circumstances of the case justify such a course and to prevent hardship and loss to the plaintiff. The Supreme Court decision in (S) AIR 1957 SC 363 is itself authority for that, position. The relevant observations are:-

'It is no doubt true that Courts would, as a rule, decline to allow amendments, if a fresh suit on the amended claim would be barred by limitation on the date of the application. But that is a factor to be taken into account in exercise of the discretion as to whether amendment should be ordered and does not affect the power of the Court to order it, if that is required in the interests of justice.'

That decision in itself is based on the judgment of the Privy Council in Charan Das v. Amir Khan, AIR 1921 PC 50 where it was held that:-

'Though there was full power to make the amendment, such a power should not as a rule be exercised where the effect was to take away from a defendant a legal right which had accrued to him by lapse of time; yet there were cases where such considerations were outweighed by the special circumstances of the case.'

9. This is pre-eminently a case for the exercise of the power. The plaintiff who had admittedly advanced a big amount to the defendant was found not entitled to sue on the hundies as they were insufficiently stamped. It is true that the plaintiff could have moved for amendment of the plaint the moment he got notice of the defence contention that the hundies could not be put in action as they were insufficiently stamped. There was no need to wait for the decision of the matter by the Court. However such conduct could be compensated by way of costs and in this particular case the Court has taken into account the delay and awarded a substantial amount as costs.

10. The order allowing the amendment is necessary for the purpose of determining the real question in controversy between the parties' and 'does not work injustice to the other side' and has only to be upheld. This revision is hence dismissed with costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //