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Nath Raj Vs. State Bank of Bikaner and Jaipur - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Revision Nos. 608 of 1975 and 194 of 1979
Judge
Reported in1979WLN(UC)498
AppellantNath Raj
RespondentState Bank of Bikaner and Jaipur
DispositionPetition dismissed
Cases ReferredCourt In Samraj v. Jethmal and Jegdish Flour and Dal Mills
Excerpt:
civil procedure code - amendment of written statement--proposed amendment not determining real question jo controversy and would lead inconsistent & contradictory pleas--amendment not bonafide and aimed to avoid payment of court fee---held, amendment was rightly disallowed;the proposed amendment in the written statement cannot, therefore, be regarded as befog necessary for the purpose of determining the real question in controversy between the parties. on the other hand the proposed amendment, if allowed, would lead to inconsistent and contradictory pleas being raised by the petitioner in his written statement inasmuch as there is inconsistency between the plea raised by the petitioner in para 2 of the additional pleas raised by him in his written statement and she plea which he it.....s.c. agrawal, j.1. both these revision petitions have been filed against the: orders passed by the additional district judge, sirohi in civil suit no. 2 of 1975 heard together and are disposed of this common order.2. the facts giving rise to these revision petitions are as under:-the state bank of bikaner & jaipur (hereinafter referred to as 'the bank'), the non-petitioner herein had extended joan facilities to the petitioner to the extent of rs. 25,0(0/- with the cash credit account opened by the petitioner under the phaina branch of the bank and by way of security for the repayment of the amount due under the cash credit account the petitioner had hypothecated the machinates and that stock of finished and unfinished goods and raw materials with the bank under a hypothecation agreement.....
Judgment:

S.C. Agrawal, J.

1. Both these revision petitions have been filed against the: orders passed by the Additional District judge, Sirohi in civil suit No. 2 of 1975 heard together and are disposed of this common order.

2. The facts giving rise to these revision petitions are as under:-The State Bank of Bikaner & Jaipur (hereinafter referred to as 'the Bank'), the non-petitioner herein had extended Joan facilities to the petitioner to the extent of Rs. 25,0(0/- with the Cash Credit Account opened by the petitioner under the phaina Branch of the Bank and by way of security for the repayment of the amount due under the Cash Credit Account the petitioner had hypothecated the machinates and that stock of finished and unfinished goods and raw materials with the Bank under a hypothecation agreement dated 3 rd March 1972 executed by the petitioner in favour of the Bank. On 10th July, 197i the Bank filed a suit against the petitioner in the court of the Additional District Judge, Sirohi for the recovery of Rs. 38,303.88 on account of the amount due under the loan advanced by the Bank to the petitioner under the Cash Credit Account, the interest payable op the said amount of loan as well as the expenses incurred by the Bank in engaging a chowkidar to keep a watch over the goods which have been hypothecated by the petitioner with the Bank under the hybothecation agreement and other incidental expenses incurred by the Bank in connection with aforesaid loan. In the said suit the petitioner filed his written statement on 3rd April, 1975 In paragraph 2 of the additional pleas in the aforesaid written statement, the petitioner has raised the plea that the Bank by taking illegal possession of the factory and the godown of the petitioner on 31st October, 1972 had prevented the petitioner from carrying on his business, as a result of which the petitioner had suffered a loss of Rs. 1,000/- per month in respect of which the petitioner was reserving his right to file a separate suit. In the aforesaid paragraph of the additional pleas the petitioner has further pleaded that the Bank has retained with it machines, chemicals and other articles described in the list annexed to the written statement and that the said goods which were of the value of Rs. 44,775/- have now deteriorated and that the petitioner is entitled to receive the said amount from the Bank as the said loss has been caused on account of negligence of the Bank for which it is responsible The petitioner In the aforesaid paragraph of his written statement has also stated that in law, no court fee is payable but in case court fee is demanded on the aforesaid amount, he is willing to pay the fame.

3. After the filing of the aforesaid written statement, an application was moved by the Bank, wherein it was submitted that the claim set-up by the petitioner in written statement is in the nature of a counter claim and that the said claim cannot be adjudicated upon unless the petitioner is required to pay ad valorem court fee on the same. The said application was contested by the petitioner who submitted that the claim set up by him in the written statement neither amounted to a set off, nor to a counter claim but is a plea of adjustment and, therefore, no court fees is payable on it. The Additional District Judge, by his order dated 15th September, 1975 has held that the plea raised by the petitioner in his written statement could not regarded as a plea of adjustment but is a counter claim and that the petitioner is liable to pay ad valorem court fee on the same. The Additional District Judge, therefore, directed the petitioner to pay ad valorem court fee on the sum of Rs. 44,775/- claimed by him in paragraph 2 of the additional pleas of his written statement within a period of one month from the date of the passing of the order. Being aggrieved by the aforesaid order dated 15th September, 1975, the petitioner has filed a Revision petition No. 608/1975.

4. During the pendency of the aforesaid revision petition in this Court, the petitioner, on 20th of February, 1979, moved an application in the court of she Additional District Judge for the amendment of the written statement so as to add paragraph 1A in the additional pleas to the written statement By the aforesaid amendment the petitioner sought to plead chat on account of the neligence of the Bank, damage to the extent of Rs. 44,775/- was caused to the goods and the machines of the petitioner and that the aforesaid amount bad already been adjusted by the petitioner in the account of the Bank with him and the information about the same was also given by him to the Bank on 1st January, 1975 and that as a result of the aforesaid adjustment money is recoverable by the petitioner from the Bank and that the suit of the Bank is not maintainable. The said application for the amendment of the written statement was opposed by the Bank The Additional District Judge, by his order dated 12th May, 1979, has dismissed the said application filed by the petitioner for amendment of the written statement. Civil Revision Petition No. 194/1979 has been filed by the petitioner against the order dated 12thMay 1979, passed by the Additional District Judge, rejecting the application of the amendment of the written statement.

5. I have heard Shri K.C. Samdariya, the learned Counsel for the petitioner and Shri M.M. Vyas, the learned Counsel for the Bank. A notice was issued to the Government Advocate in Revision Petition No. 608/1975 and in response to the said notice. Shri D.S. Shisodia Government Advocate has appeared and has supported the orders that were passed by the Additional District Judge.

6. Shri K.C. Samdariya, the learned Counsel for the petitioner has submitted that Revision Petition No. 194/1979 may be considered first inasmuch as, if the petitioner succeeds in the revision petition No. 194/1979 and the order dated 12th May, 1979 passed by the Additional District Judge, rejecting the application for amendment of the written statement is set aside and the amendment sought by the petitioner in the written statement is allowed, the said circumstance would have a bearing on the decision of Civil Revision Petition No. 608/1975. I find merit in the aforesaid contention. I, therefore, propose to first deal with Civil Revision Petition No. 194 of 1979, arising out of the application for the amendment of the written statement filed by the petitioner.

7. Shri Samdariya, the learned Counsel for the petitioner, has submitted that the main ground on the basis of which the amendment of the written statement has been disallowed by the Additional District Judge was that the petitioner had failed to produce the letter dated 1st January, 1975 referred to by him in the application for amendment. Shri Samdariya has submitted that the copy of the said letter dated 1st January, 1975, was produced by him as far back as on 9th February, 1976, and that the Additional District Judge has erred in rejecting the application for amendment of the written statement on the ground that the letter dated 1st January, 1975 had not been produced, by the petitioner. Shri Samdariya has further submitted that the Additional District Judge, In disallowing the amendment of the written statement has, in the exercise of his jurisdiction, acted illegally and with material irregularity.

8. Shri M.M Vyas, appearing for the Bank and Shri D.S. Shishodia, Government Advocate, have, on the other hand, submitted that the failure to produce the letter dated 1st January, 1975, is only one of the various reasons given by the Additional District Judge for disallowing the amendment of the written statement and that apart from the aforesaid ground, the Additional District Judge, in his order dated 12th May, 1979, has given various other reason for holding the this amendment of the written statement could not be allowed, Shri Vyas has also submitted that the circumstances in which the latter dated 1st January, 1975, has been produced by the petitioner throws doubt on the genuineness of the said document. In this connection the learned Counsel has pointed out that even though the written statement was filed on 3rd April, 1975 and the petitioner had filed certain documents along with the written statement the aforesaid document dated 1st January, 1975, was not filed by the petitioner along with the written statement but was filed after the order dated 15th September, 1975, had been pasted by the Additional District Judge, holding that the plea raised by the petitioner could not be regarded as an adjustment and that the petitioner was liable to pay the court fee on the claim for the sum of Rs. 44,775/- Shri Vyas as well as Shri Shisohodia have submitted that no case is made out for interference by this Court in exercise of its revisional jurisdiction with the order passed by the Additional District Judge disallowing the amendment of the written statement in as much as the said order does not suffer from any illegality or material irregularity in the exercise of the jurisdiction.

9. A perusal of the order dated 12th May, 1979, passed by the Additional District Judge shows that the application for amendment of the written statement has been rejected for the following reasons:

(i). The plea sought to be raised by the proposed amendment is inconsistent with the pleas raised by the petitioner in the written statement.

(ii). The amendment application has not been moved bonafide in as much the object of the proposed amendment sought is to render ineffective the order dated 15th September, 1975, and avoid payment of court fee in pursuance of the said order.

(iii). By the proposed amendment, the petitioner was trying to raise a new plea which could not be allowed to be raised.

(iv). An issue no. 5 already exists whereunder the right of the petitioner to claim the aforesaid amount can be adjudicated upon and the proposed amendment will not be of any assistance in deciding the matters in controversy between the parties.

(v). Even on the merits there is no substance in the plea sought to be raised by the petitioner by way of amendment of the written statement in as much as the letter dated 1st January, 1975, referred to in the amendment application has not been placed on record.

10. This shows that non-production of the letter dated 1st January, was one of the various reasons given by the Additional District Judge for disallowing the amendment of the written statement and Shri Samdariya is not tight in his submission that the Additional District Judge has disallowed the amendment in the written statement mainly on the ground that the letter dated 1st January, 1975, had not been placed on record.

11. Nor is there any merit in the contention of Shri Samdariya that in disallowing the amendment in the written statement, the Additional District Judge has, in the exercise of his jurisdiction, acted illegally or with material irregularity. The petitioner had sought leave to add the following paragraph (as paragraph 1A in the additional pleas raised by him in his written statement:

,% ;g fd oknh dh ykijokgh ds dkj.k izfroknh ds eky] e'khu bR;kfn dh [kjkch ds dkj.k gq, uqdlku jde :i;s 44775@& izfroknh us nkos ls iwoZ gh oknh ds [kkrs es ,MtLV dj nh FkhA ftl ckcr oknh dks lwpuk Hkh nkos ls iwoZ fnukad 1&1&1975 dks dj nh Fkh ftlus oknh es izfroknh dks myVh jde ysuh fudyrh gS Aftlls oknh dk okn esuVscy ugh gS A

A perusal of the proposed amendment shows that by introducing said amendment, the petitioner is seeking to raise the plea that before the filing of the suit, the petitioner had adjusted in the account of the Bank with him, the turn of Rs. 44,775/- towards the loss sustained by him on account of the damage caused to the machines and the goods of the petitioner due to the negligence of the Bank and that the petitioner by his letter dated 1st January 1975, had informed the Bank with regard to aforesaid adjustment made by him and that as a result of the aforesaid adjustment, the petitioner is entitled to recover some money from the Bark and that the suit of the Back is not maintainable. By the aforesaid amendment the petitioner does not seek to make any amendment in paragraph 2 of the Additional pleas raised by him in the written statement wherein he had pleaded that the Bank had detained with it the machines, the chemicals and other articles, the particulars of which are given in the list annexed to the written statement and that the value of the said goods is Rs. 44,775/-, which amount the petitioner is entitled to deduct from the amount claimed by the Bank because the said goods had deteriorated and the said damage had been caused on account of negligence of the Bank and it is responsible for the same. On the basis of the aforesaid averments contained in paragraph No. 2 of the additional pleas in the written statement, the following issue (issue No. 5) has been framed:

Issue No. 5--whether the plaintiff wrongfully retained the possession of the articles mentioned in the list annexed with the mitten statement and the defendant had suffered loss of Rs. 44, 775/- which the defendant is entitled to adjust against the suit money?

The aforesaid issue shows that the question with regard to the right of the petitioner to claim the sum of Rs. 44,775/ from the Bank on account to loss suffered by the petitioner due to the wrongful retention in its possession of the machines and articles mentioned in the list annexed to the written statements is already the subject matter of adjudication under Issue No. 5 The proposed amendment in the written statement cannot, therefore, be regarded as being necessary for the purpose of determining the real question in controversy between the parties. On the other hand the proposed amendment, if allowed, would lead to inconsistent and contradictory pleas being raised by the petitioner in his written statement inasmuch as there is inconsistency between the plea raised by the petitioner in para 2 of the additional pleas raised by him in his written statement and the plea which he is seeking to raise by adding para 1A in the written statement. In para 2 of the Additional pleas the petitioner has pleaded his right to claim adjustment of the sum of Rs. 44,775/- whereas in para 1A of the additional pleas, which he is seeking to add by way of amendment, the petitioner it raising the plea that he had already made the adjustment amount of Rs. 44,775/- on 1st January, 1975, prior to the date of the filing of the suit by she Bank. In my opinion, the Additional District Judge has not committed any error in rejecting the application filed by the petitioner for amendment of the written statement on the ground that if the said amendment is allowed, it would result in inconsistent and contradictory pleas being permitted to be raised in the written statement

12. I am also of the view that the Additional District Judge was right in disallowing the amendment prayed by the petitioner on the ground that the aforesaid amendment cannot be regarded as bonafide in as much as the whole object of the said amendment is to avoid payment of court fee on the claim of Rs. 44,775/-, and circumvent the order passed by the Additional District Judge on 15th April, 1975, holding that the claim for Rs. 44 775/. made in the written statement was a counter claim and the petitioner was liable to pay court fee on the sum of Rs. 44,775/-. The contention urged by the learned Counsel for the petitioner that the decision of this Court In Jawan Mal. v. Gajasinghji AIR 1974 Rajasthan 184 on which reliance has been placed by the Additional District Judge is not applicable to the facts and circumstances of the present case, cannot be accepted. In Jawanmal's case (supra) this Court was dealing with a case in which the trial Court had held that the claim made by the defendant in his written statement was not plea of adjustment but was In the nature of a set off and the defendant was liable to pay Court fee on the amount of the set off and the aforesaid order of the trial Court was affirmed in revision by this Court After the decision of this Court rejecting the revision petition the defendant had moved an application for leave to amend the written statement whereby he sought to make up the deficiency In his case as pointed out by this Court in its judgment while dismissing the revision application. The said amendment petition was disallowed and this Court upheld the order disallowing the amendment in revision on the view chat the amendments which were prayed by the defendant sought to introduce a different, new and inconsistent case and had been applied with a view to bypass the order passed by this Court in the previous revision application. In that context the learned Judge (Lodha J. as he than was) has observed:

I may observe that the underlying idea behind the proposed amendment is to show that the defendant is entitled to deduct the amounts claimed by him and an inquiry should be held into them without treating them as a set off and without payment of court fee. Otherwise there is no denying the fact that there is already an Issue regarding these items and the liability of the plaintiff to pay the same. This is issue No. 23 But in fact what the defendant wants is that the decision of Issue Nos. 19 and 20 may be indirectly changed in his favour In other words his object is that by the proposed amendment, the items claimed by him may be considered by way of adjustment and not by way of set off This, I think, is not permissible and the decision of this Court dated 15-12 1972 in S.B. Civil Revision Petition No. 585 of 1972 must be treated as final, as far as this Court is concerned The defendant is not entitled to by pass it under the garb of the proposed amendment.

In my opinion., the aforesaid decision is fully applicable to the facts and circumstances of the present case inasmuch as in the present case also the petitioner is seeking to introduce a different, new and inconsistent case and the only object of the proposed amendment is to by pass the order dated 15th September, 1975, passed by the Additional District Judge and that in the present case also there is already an issue (issue No.5) regarding liability of she Bank to pay the sum of Rs. 44, 775/- claimed by the petitioner. The distinction sought to be made by the learned Counsel for the petitioner that in Jawanmal's case (supra) the amendment application was filed after the disposal of the revision petition by this Court whereas in the present case, the amendment application has been filed during the pendency of the revision petition in this Court is of no material significance because in so far as the Additional District Judge was concerned, the order dated 15th Sept. 1975, must be treated as final and the petitioner could not be allowed to by pass the said order under the garb of the proposed amendment. The Additional District Judge was, therefore, right in relying on the decision of this Court in Jawanmal 's case (supra) to hold that the amendment sought by the petitioner could not be allowed. I do not find any reason to interfere with the said order passed by the Additional District Judge in exercise of the revisional jurisdiction of this Court under Section 15 Code of Civil Procedure.

13. The submission of the learned Counsel for the petitioner that the Additional District Judge had erred in rejecting the amendment application on the ground that the petitioner had failed to produce the letter dated 1st January, 1975, referred to by him cannot be accepted As pointed out earlier, the Additional District Judge has given a number of reasons for taking the view that the amendment prayed by the petitioner in the written statement cannot be allowed. Merely because the Additional District Judge has committed the an error in holding the petitioner had failed to product the letter dated 1st January, 1975. does not mean that the order passed by the Additional District Judge suffers from an infirmity which may justify interference by this Court. The other reasons given by the Additional Distt. Judge for rejecting the amendment application moved by the petitioner are, in my opinion, quite sufficient and, therefore, existence of letter dated 1st January 1975, on the record does not make any difference. It must, be concluded that there is no merit in Civil Revision Petition No. 194/79 filed by the petitioner.

14. New I proceed to deal with the Revision Petition No. 609 of 1975 filed by the petitioner against the order dated 15th September, 1975, passed by the Addl. District Judge holding that the plea raised by the petitioner in his written statement is not a plea of adjustment but in the nature of counter claim and the petitioner is liable to pay court fee on the sum of Rs. 44,775/-cLimed by him.

15. In Section 8 of the Rajasthan Court Fees and Suits Valuation Act, 1961 it is laid down that a written statement pleading a set off or counter claim shall be chargeable with fee in the same manner as a plaint, In other words the defendant is liable to pay court fee on the amount claimed by him as set off or counter claim in the written statement But a distinction has to be made between a pica of set off or counter claim and a plea of adjustment and satisfaction raised by the defendant in his written statement. A plea of adjustment and satisfaction does not constitute a plea of set off or counter claim and the respondent is not liable to pay court fee on the claim of adjustment and satisfaction.

16. In Mangal Chand Surana v. Food Co potation of India and Ors. S.B. Civil Revision Petition No. 25 of 1975 decided on 28th February, 1979) I have pointed out the difference between the pleas of adjustment, set off and counter claim and in that context I had observed:

In response to the claim of the plaintiff, the defendant, in his written statement, may plead that:

(i)--the amount which is claimed by the plaintiff from the defendant has been adjusted by the defendant against an amount which the defendant is entitled to recover from the plaintiff and therefore, the plaintiff is not entitled to recover any sum of money from the defendant ;

(ii)--As against the sum of money claimed by the plaintiff from the defendant in the suit, the defendant is entitled to recover from the plaintiff a sum of money which amount, the defendant is entitled to set off against the claim of the plaintiff or that

(iii)--the defendant is entitled to recover a sum of money which is in excess of the amount claimed by the plaintiff in the suit and that a decree for the excess amount claimed by the defendant be passed in favour of the defendant. The first Is a plea of adjustment, the second is a plea of set off and the third is a counter claim. In a plea of set off or a counter claim the defendant seeks the assistance of the Court in the matter of determination of the liability of the plaintiff for amount which is claimed to be payable by him to defendant where as in a case where the defendant pleads that he has adjusted the amount payable by him to the plaintiffs as against the amount which is recoverable by him from the plaintiff, the defendant only pleads the satisfaction or extinguishment of the doubt or claim set up by the plaintiff and does not seek assistance of the Court. In a case where the defendant pleads set off or makes a counter claim be is required to pay court fee on the amount of set off or counter claim but in a case where he pleads adjustment of the amount payable by him to the plaintiff against an amount recoverable by him from the plaintiff no court fee is payable.

In order to determine whether the plea raised by the petitioner in para 2 of the Additional pleas raised by him in his written statement, is a plea of adjustment as claimed by the petitioner, or is a plea of set off or a counter claim as claimed by the Bank, it is necessary to set out the contents of the aforesaid paragraph of the written statement, which reads as under

;g fd oknh us ,dhj fnukad 31&10&72 ds vuqlkj QSDVjh o xksnke ds rkyk yxkdj voS/k :i ls dCtk fnukad 31&10&72 dks fd;k ftlls izfroknh viuk mu e'khuks o eky ds vk/kkj ij dksbZ /kU/kk ugh djus ls mls :0 1000@& ekgokj iSnkoa'k dk uqdlku gqvk ftlls izfroknh vyx ls nkok djus dk gd dk lqjf{kr j[krk gS A blds vykok laye lwph es ntZ e'khus dsfedYl o leku tks oknh us jksd j[kk vkSj tks vc izk;% [kjkc gks pqdk gS vSkj tks oknh ds dCts es gsS mldh dher ds :0 44775@& izfroknh oknh ls ikus dk vf/kdkjh gS tks jde izfroknh nkos es eqtjs ikus dk vf/kdkjh gS A pwfd ;g uqdlku oknh dh xQyr ls gqvk gS blfy, ;g ftEesnkj gS vxj dHkh dksVZ bl jde ij dksVZ Qhl ryc djsxh rks izfroknh tek djkus dks rS;kj gS A osk dkuwuu bl jde ij dksVZ Qhl ns; ugh gS A

A perusal of the aforesaid paragraph shows that it consists of two parts. In the first part the petitioner has pleaded that on account of the Bank having taken illegal possession of the factory and the godown of the petitioner on 31st October, 197k, the petitioner was unable to carry on his business and as a result thereof he bad sustained loss of income at the rate of Rs. 1000/ per month and that the petitioner was reserving his right to file a separate suit for the same. In the second part which is relevant for the purpose of this case, the petitioner has pleaded that the machines, chemicals and other articles mentioned in the list annexed to the written statement of the value of Rs. 44, 775/- was detained by the bank as a result of which they have deteriorated & the petitioner is entitled to recover the aforesaid sum from the Bark because the said loss has been caused on account of negligence of the Bank and it is (responsible for the same There has been some controversy with regard to the exact meaning of the words eqtjs ikus used in the aforesaid paragraph. According to Shri Samdariya, learned Counsel for the petitioner, the aforewords mean adjustment whereas according to Shri M. M. Vyas, the learned Counsel for the Bank, the said words mean set off. A reference to the dictionary shows that word eqtjks means deduction or set off In the context in which the said words have been used in paragraph 2 of additional pleas raised in the written statement, the said words, in my opinion, have been used to mean set off because the petitioner has pleaded that he is entitled to the payment of aforesaid amount which means he is claiming the aforesaid amount from the Bank. It cannot be regarded as a plea that the petitioner has already adjusted the amount of Rs. 44 775/- against the amount payable by the petitioner to the Bank.

17. As laid down by this Court In Samraj v. Jethmal and Jegdish Flour and Dal Mills v. Shri Ram Ladu Ram AIR 1966 Rajasthan 177, adjustment postdates an action prior to the stage of the defence and a plea in the written statement by the defendant that he is entitled to recover an amount from the plaintiff Bank cannot be regarded as a plea of adjustment but is in the nature of plea of set off or counter claim. The plea raised by the petitioner in para 2 of the additional pleas of his written statement that he is entitled to recover Rs. 44,775/-, the value of the machines, chemicals and other articles retained by the Back cannot, therefore, be regarded as a plea of adjustment

18. The Additional District Judge was therefore, right in holding that the plea raised by the petitioner in para 2 of the additional pleas raised in the written statement is not a plea of adjustment and that the petitioner is liable to pay court fee on the sum of Rs. 44,775/- claimed by him from the Bank. No ground is thus made out for interference by this Court in revision with the order dated 15th September, 1979, passed by the Additional District Judge.

19. In the result both the revision petitions are dismissed but In the circumstances of the case, the parties are left to bear their own costs.

20. The learned Counsel for the petitioner prays for two months time to submit the deficit amount of court fee by him. Time prayed is allowed.


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