Allowed

Smt Swarnalatha K v. Karnataka State Industrial Investment &

Karnataka HC3 Apr 2013WP/5578/2012

Case brief

AI extract

What is this about?

Allowed a writ petition quashing a lower court order that allowed an amendment to a suit petition filed over three years after amendments to the Code of Civil Procedure came into force. The High Court held that the amended proviso to Order 6 Rule 17 CPC applies retrospectively and barred the amendment due to lack of due diligence.

What did the court decide?

The writ petition under Articles 226 and 227 of the Constitution of India was allowed. The order dated 7.1.2012 allowing the amendment was quashed, and the application for amendment was rejected.

Smt Swarnalatha K Vs Karnataka State Industrial… — Banking and Recovery | Karnataka HC (2013)

¶1

¶2

IN THE HIGH COURT OF KARNATAKA AT BANGALORE

¶3

DATED THIS THE 3^RD DAY OF APRIL 2013

¶4

BEFORE

¶5

THE HON’BLE MR.JUSTICE S. ABDUL NAZEER

¶6

WRIT PETITION NO.5578/2012 (GM-RES)

¶7

Between:

¶8

Smt. Swarnalatha K., W/o Mr.V.Krishnaswamy, Aged about 64 years, R/o No.221, 2^nd E Cross, 6^th Main, III Block, Basaveshwaranagar, Bangalore – 560 079. …. Petitioner.

¶9

(By Sri C.S.Kothavale, Adv.)

¶10

And:

¶11

1 Karnataka State Industrial Investment & Development Corporation Limited, “MSIL House:, No.36, Cunningham Road, Bangalore – 560 052, Reptd. By its Manager.

¶12

¶13

2	M/s Techsmart Austenizers Pvt. Ltd., No.1376, 6^thMain, 2^ndStage, West of Chord Road, Bangalore – 560 086, Reptd. By its Managing Director.
3	Mr.Gottigundala Anantha Reddy, S/o Gottigundala Penchala Reddy, major.
4	Mr.Gottigundala Penchala Reddy, S/o Mr.Gottigundala Narasa Reddy, major.
5	Smt.Gottigundala Swarnalatha, W/o Mr.Gottigundala Penchala Reddy, major.
	R3 to R5 are r/a No.1377, 6^thMain, II Stage, West of Chord Road, Bangalore – 560 086.
6	Mr.G.Ananth, S/o Mr.G.Penchala Reddy, major, R/o No.1377, 7^thMain, II Stage, 12^thCross, West of Chord Road, Bangalore – 560 086. …. Respondents.
(By	Sri V.F.Kumbar, Adv. For R1 Notice to R2 to R6 dispensed with)

¶14

This Writ Petition is filed under Articles 226 & 227 of the Constitution of India, praying to quash the order dated 7.1.2012

¶15

¶16

passed by the 37^th Addl. City Civil and Sessions Judge, Bangalore City on I.A. For amendment in Misc.No.446/2001 as per Annexure 'D', etc.

¶17

This Writ Petition coming on for Further Hearing this day, the Court passed the following:

¶18

ORDER

¶19

This writ petition is directed against the order at Annexure 'D' dated 7.1.2012 in Misc.No.446/2001 on the file of the 37^th City Civil and Sessions Judge, Bangalore City, whereby the application filed by the first respondent for amendment of the petition has been allowed.

¶20

The first respondent filed Misc.No.446/2001 (Annexure

¶21

'E') against the petitioner herein and respondent Nos.2 to 6 under Section 31(1)(a) and (aa) of the State Financial Corporations Act, 1951 (for short 'the Act'). The case was posted for evidence on 27.9.2005. The evidence was let in on 12.3.2007. At this stage, the

¶22

¶23

first respondent filed the application at Annexure 'C' under Order 6 Rule 17 of the Code of Civil Procedure for amendment of the petition. The application was opposed by the petitioner herein. The court below has allowed the application.

¶24

Sri C.S.Kothavale, learned Counsel appearing for the

¶25

petitioner submits that the court below is not justified in allowing the application. It is argued that the amendment sought is barred by time. The petition was filed in the year 2001 and the evidence was let in on 12.3.2007. The application for amendment was filed on 17.6.2009. Having regard to the proviso to Order 6 Rule 17 of the

¶26

CPC as amended, the court below should not have allowed the application. It is further argued that CPC is a procedural law is also applicable to the proceedings pending on the date of amendment.

¶27

Hence, the court below is not justified in holding that proviso to Order 6 Rule 17 as amended by Act No.22/2002 which has come

¶28

¶29

into force w.e.f. 1.7.2002 is not applicable to the instant case. It is further argued that the additional prayer made in the proposed amendment does not come within the ambit of Section 31(1) of the Act. The proceedings initiated under Section 29 of the Act against the petitioner has been quashed by this Court in W.P.No.48136/2004 following the decision of the Apex Court in

¶30

KARNATAKA STATE FINANCIAL CORPORATION VS. N.NARASIMHAIAH – 2008 AIR SCW 2480 . Since the prayer made in the proposed amendment does not fall within Section 31(1) of the Act, question of allowing the said application does not arise.

¶31

On the other hand, learned Counsel appearing for the first respondent has sought to justify the impugned order. It is argued that first respondent has sought permission to sell the schedule property mortgaged by the petitioner herein to the first respondent

¶32

¶33

as collateral security towards the loan availed by the second respondent. Similar prayer has already been made in the main petition and it is in further elaboration of the said plea, the amendment has been sought for.

¶34

I have carefully considered the arguments of the learned

¶35

Counsel made at the Bar and perused the materials placed on record

¶36

As noticed, the main petition was filed on 31.5.2001. It is

¶37

not in dispute that the matter was posted for evidence on 27.9.2005. The evidence was let in on 12.3.2007 and the application for amendment was filed on 17.6.2009. Proviso to Order 6 Rule 17 of the CPC as amended by Amendment Act No.22/2002, which has come into force w.e.f. 1.7.2002 states that no application for amendment shall be allowed after the trial has commenced, unless

¶38

¶39

the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial.

¶40

The Apex Court in AJENDRAPRASADJI N. PANDEY

¶41

AND ANOTHER VS. SWAMI KESHAVPRAKESHDASJI N.

¶42

AND OTHERS – (2006) 12 SCC 1 , has held that the defendant has

¶43

to prove that in spite of due diligence, he could not have raised the matter before the commencement of trial. The grant of amendment at a belated stage when deposition and evidence of three witnesses

¶44

is already over as well as the documentary evidence is already tendered, coupled with the fact that the appellants application at Ext.64 praying for recasting of the issues having been denied and the said order never having been challenged by the appellants, the grant of the present amendment as sought for at this stage of the proceedings would cause serious prejudice to the contesting

¶45

¶46

respondent. Hence, it is in the interest of justice that the

¶47

amendment sought for be denied and the petition be dismissed.

¶48

8. In J.SAMUEL AND OTHERS VS. GATTU MAHESH

¶49

AND OTHERS – 2012 AIR SCW 1035 , the Apex Court has held as under:

¶50

“13. Due diligence is the idea that reasonable investigation is necessary before certain kinds of relief are requested. Duly diligent efforts are a requirement for a party seeking to use the adjudicatory mechanism to attain an anticipated relief. An advocate representing someone must engage in due diligence to determine that the representations made are factually accurate and sufficient. The term 'Due diligence' is specifically used in the Code so as to provide a test for determining whether to exercise the discretion in situations of requested amendment after the commencement of trial.

¶51

¶52

A party requesting a relief stemming out of a claim is required to exercise due diligence and is a requirement which cannot be dispensed with. The term 'due diligence' determines the scope of a party's constructive knowledge, claim and is very critical to the outcome of the suit.”

¶53

In the instant case, petitioner has not assigned cogent

¶54

reasons for the delay in filing the application. It is not the case of the first respondent that inspite of due diligence, it could not seek amendment before the commencement of trial. As noticed above, the petition was filed in the year 2001 and the application for amendment was filed in the year 2009. The only explanation offered by the first respondent is that it had filed a petition under Section 29 of the Act to take over the collateral security furnished by the petitioner herein and put the same for public auction. The petitioner filed a writ petition challenging the action of the

¶55

¶56

Corporation before this Court in W.P.No.48136/2004 and the said petition was allowed on 30.9.2008. This cannot be an explanation for the delay in filing the application for amendment of the petition.

¶57

The trial Court in the course of the order has observed that the proviso to Order 6 Rule 17 of the CPC as amended is not applicable to the present petition because the petition is of the year 2001 and the CPC was amended in the year 2002. It is well settled that no person has a vested right in any course of procedure. He has only the right of prosecution or defence in the manner prescribed for the time being by or for the Court in which the case is pending and if by an Act of Parliament the mode of procedure is altered, he has no other right than to proceed according to the altered mode. In other words, a change in the law of procedure operates retrospectively ( See ANANT GOPAL SHEOREY VS. THE STATE OF BOMBAY – AIR 1958 SC 915 ).

¶58

¶59

The Code of Civil Procedure prescribes the procedure of

¶60

the Civil Court. The amended provision is applicable to the instant case also.

¶61

In my view of my finding that the amendment is

¶62

opposed to the proviso to Order 6 Rule 17 of the CPC, it is unnecessary to consider the other contentions of the parties.

¶63

In the result, the writ petition succeeds and it is accordingly allowed. The order passed by the 37^th City Civil and Sessions Judge, Bangalore City, in Misc.No.446/2001 dated 7.1.2012 at Annexure 'D' is hereby quashed. The application filed by the first respondent for amendment of the petition under Order 6 Rule 17 of the CPC is rejected.

¶64

¶65