026-SLLR-SLLR-1995-2-AVUDIAPPAN-V.-INDIAN-OVERSEAS-BANK.pdf
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Avudiappan v. Indian Overseas Bank
131
AVUDIAPPAN
v.INDIAN OVERSEAS BANK
COURT OF APPEALS. N. SILVA, J„ (PICA)
DR. RANARAJA, J.
A. 951/94
C. COLOMBO 4211/M.
MARCH 13. 1995.
Civil Procedure Code – Amendment 9 of 1991 – S. 93(2) Amendment ofpleadings – S. 146 Civil Procedure Code – Issues – Laches.
The Respondent-Bank instituted action on 24.6.88 to recover a certain sum ofmoney with interest due on a temporary overdraft facility. The Petitioner filedanswer on 5.11.93, and the matter was fixed for trial on 24.02.94. After severaldates of postponement it was taken up for Trial on 21.9.94. On an objection raisedby the Petitioner that the issues framed did not arise from the pleadings, theRespondent was allowed to file amended plaint, subject to the right of thepetitioner to raise any objection. The Amendment sought was to include a claimbased on a term loan. The application was resisted on the grounds of (1) anapplication for amendment could not be allowed after the first day, the case isfixed for trial (2) laches (3) absence of any material in support of the fact that theRespondent will suffer irremediable injustice. The court allowed this amendmenton the ground that the Respondent will suffer irremediable injustice, the Petitionermoved in Revision against the order.
Held:
The Amendment sought by the Respondent was clearly forseeable. Theamendments contemplated by S. 93(2) are those that are necessitated due tounforeseen circumstances.
Laches does not mean deliberate delay, it means delay which cannot bereasonably explained. The plaint was filed in July 1988, the amendment wassought in September 1994. No explanation was forthcoming from the respondentfor the delay. Such a delay in seeking amendment of pleadings on the 5th day ofTrial cannot be countenanced.
The Respondent had filed action to recover sums due on a temporaryoverdraft, there was nothing to prevent the Respondent raising issues on thatbasis, as S. 146 of the Civil Procedure Code permits Court to record issues onwhich the right decision of the case appears to Court to depend, on thepleadings, documents and evidence led at the trial.
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The Court has come to a premature conclusion that the Respondent would sufferirremediable injustice.
APPLICATION in Revision from the Order of the District Court of Colombo.
Gomin Dayasiri with K. D. Alwis for Petitioner.
S. Mandaleswaran with B. Peramuna for Respondent.
March 13.1995.
RANARAJA, J.
This is an application in revision from the order of the AdditionalDistrict Judge dated 13.12.94. By that order the respondent waspermitted to amend its plaint after the first date of trial.
Section 93(2) of the Civil Procedure Code provides:
“On or after the first day fixed for the trial of the action andbefore final judgment, no application for the amendment of anypleadings shall be allowed unless the court is satisfied forreasons to be recorded by court, that grave and irremediableinjustice will be caused if such amendment is not permitted,and on no other ground, and that the party so applying has notbeen guilty of laches.".
The court may under that section, permit an amendment of a plaintonly if it is satisfied that; (1) the plaintiff will suffer an irremediableinjustice if the amendment is not permitted and (2) the plaintiff hasnot been guilty of laches.
The respondent Bank instituted action on 24.6.88 against thepetitioner to recover a sum of Rs. 290,146.60 with interest, due on atemporary overdraft facility. The petitioner filed answer on 5.11.93and the matter was fixed for trial on 24.2.94. The trial was howeverpostponed on that day and on three occasions subsequently. Whentrial was taken up on 21.9.94, the petitioner objected to the issuesraised by the respondent on the basis that they did not arise from thepleadings. The respondent then moved to amend its plaint. Thisapplication was allowed by court subject to the right of the petitionerto raise any objections to the amendments. The proposed amended
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Avudiappan v. Indian Overseas Bank (Ranaraja, J.)
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plaint was filed on 28.9.94. By that amendment the respondentsought to include a claim based on “pecuniary aid and/or assistanceby way of term loans subject to the obligation and/or promises torepay on demand”, in addition to the claim on temporary overdraftfacility. The petitioner filed objections to the proposed amendment.They were; (1) an application for amendment of the plaint could notbe allowed after the first day the case is fixed for trial. (2) laches and(3) absence of any material in support of the fact that the respondentwill suffer irremediable injustice.
The Learned Additional District Judge allowed the amendmentholding that the respondent would suffer irremediable injustice sinceit would not be able to raise relevant issues on the original plaint, thatlaches means deliberate delay on the part of the respondent and thatthe amendment does not disclose a new cause of action.
The reasoning of the Learned Judge that the respondent wouldsuffer irremediable injustice if the amendment is not allowed is a nonsequitur. The respondent had filed action to recover moneys due on atemporary overdraft facility. There was nothing to prevent therespondent raising issues on that basis. In any event, section 146 ofthe Civil Procedure Code permits court to record issues on which theright decision of the case appears to court to depend, on thepleadings, documents and evidence led at the trial. In other words,the court has come to a premature conclusion that the respondentwould suffer irremediable injustice. The amendments contemplatedby section 93(2) are those that are necessitated due to unforeseencircumstances, and not those that could have been foreseen withreasonable diligence. The amendments sought by the respondentwere clearly foreseeable, because it was aware of the transactions ithad with the petitioner. It chose to restrict the claim to moneys due onthe temporary overdraft facility. The fact that it failed to include theclaims on loans etc; in the original plaint was due solely to its lack ofdiligence. Such amendments cannot be allowed under the section.
Laches does not mean “deliberate delay”. It means “delay whichcannot be reasonably explained". The original plaint was filed in June
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1988. The amendment was sought in September 1994, that is oversix years after the original plaint was filed. No explanation, let alone areasonable explanation, has been forthcoming from the respondentfor the delay. The application for amendment was made on the fifthdate of trial. Such a delay in seeking amendment of pleadings cannotbe countenanced. The learned Additional District Judge was clearlyin error in holding that there was no laches on the part of therespondent.
For the reasons given, the order of the Learned Judge acceptingthe amended plaint dated 13.12.94 is set side. The application isaccordingly allowed, but without costs.
S. N. SILVA, J. -1 agree.
Application allowed.