Dismissed

K.P.Haridas v. M.a.Kalyanakrishnan

Kerala HC28 Jun 2012OP(C)/1968/2012

Case brief

AI extract

What is this about?

In this Original Civil Petition, the Kerala High Court dismissed a challenge to the Sub Judge's refusal to allow amendment of a written statement in a cheque dishonour case. The Court held that the attempt to alter the admitted plea regarding a blank cheque could not be permitted, though it remitted a request for a subsequent written statement to the Sub Judge.

What did the court decide?

The Original Petition was dismissed; the request to file an additional written statement was remanded to the Sub Judge for consideration.

K.P.Haridas Vs M.a.Kalyanakrishnan — Cheque Dishonour | Kerala HC (2012)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH

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THURSDAY, THE 28TH DAY OF JUNE 2012/7TH ASHADHA 1934

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OP(C).NO. 1968 OF 2012 (O)

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OS.272/2005 OF ADDL.SUB COURT, PALAKKAD

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PETITIONERS:

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1. K.P.HARIDAS, AGED 51 YEARS S/O K.PARASURAMAN RESIDING AT ARAPPATHU KALLINKAL HOUSE SREE DURGA STREET, KARNAKINAGAR, VADAKKANTHARA P.O. PALAKKAD.

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2. RAJI HARIDAS, W/O K.P.HARIDAS RESIDING AT ARAPPATHU KALLINKAL HOUSE SREE DURGA STREET, KARNAKINAGAR, VADAKKANTHARA P.O. PALAKKAD.

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BY ADVS.SRI.T.C.SURESH MENON

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SRI.P.S.APPU SRI.A.R.NIMOD SRI.K.A.ANAS

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RESPONDENT:

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M.A.KALYANAKRISHNAN, S/O KRISHNA GUPTHAN, RESIDING AT SWATHI, 15/430(3) PALAYAPETTA, PALAKKAD NO.III VILLAGE PALAKKAD-678 001.

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THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 28-06-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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APPENDIX

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(O.P(C) NO.1968 OF 2012)

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PETITIONER(S)' EXHIBITS:

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EXHIBIT P1 TRUE COPY OF THE PLAINT IN O.S. NO.272/2005 ON THE FILE OF THE COURT OF THE SUBORDINATE JUDGE (ADDL.) OF PALAKKAD DATED 12.9.2005.

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EXHIBIT P2 TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE PETITIONERS DATED NIL.

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EXHIBIT P3 TRUE COPY OF THE APPLICATION FOR AMENDMENT IN I.A. NO.2875 OF 2011 IN O.S. NO.272 OF 2005 DATED 31.8.2011. EXHIBIT P4 TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY THE RESPONDENT DATED 06.03.2012.

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EXHIBIT P5 TRUE COPY OF THE ORDER IN I.A. NO.2875 OF 2001 IN O.S. NO.272 OF 2005 ON THE FILE OF THE COURT OF THE SUBORDINATE JUDGE (ADDL.) OF PALAKKAD DATED 10.4.2012.

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RESPONDENT(S)' EXHIBITS: NIL

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TRUE COPY

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P.S. TO JUDGE

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THOMAS P. JOSEPH, J.

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O.P.(C) No.1968 of 2012 --------------------------------------

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Dated this the 28^th day of June, 2012.

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JUDGMENT

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Respondent is served through special messenger but there is no response.

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This Original Petition is filed by the defendants in O.S.No.272 of 2005 of the Additional Sub Court, Palakkad challenging Ext.P5, order dated 10.04.2012 refusing amendment of written statement which the learned Sub Judge held, has the effect of allowing the petitioners to resile from the admissions they have (allegedly) made in their written statement.

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Respondent sued petitioners for recovery of money based on a cheque dated 15.07.2005 for `6,50,000/-. The cheque was dishonoured for insufficiency of funds. Respondent claimed that he was compelled to discharge the liability of the 1^st petitioner with the Kerala State Co-operative Bank Ltd. For repayment of that amount, petitioners issued the said cheque.

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Petitioners filed Ext.P2, written statement contending that the loan was taken for the benefit of the respondent and one Ramankutty. Respondent obtained a signed blank cheque the petitioners.

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OP(C) No.1968/2012

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Petitioners later filed Ext.P3, application on 31.08.2011 for amendment of Ext.P2, written statement contending that it was the 1^st petitioner, husband of the 2^nd petitioner who gave instruction to the counsel to give reply notice and prepare the written statement. Petitioners were under the impression that the signatures in the cheque were their's. In the connected criminal case petitioners were acquitted as per judgment dated 12.05.2012. The 2^nd petitioner obtained a certified copy of the cheque from the criminal case and then only petitioners learnt that the 2^nd petitioner has not signed in it. Petitioners wanted to amend Ext.P2, written statement by deleting the words “defendants gave signed blank cheque as security” and inserting the words “1^st defendant gave the blank cheque signed by him as security”.

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Respondent preferred Ext.P4, objection to that application contending that the attempt of petitioners is to resile from the admission they have made in the written statement as to their signature in the cheque.

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By Ext.P5, order learned Sub Judge accepted the objection of the respondent and dismissed Ext.P3, application. Ext.P5, order is under challenge.

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The learned counsel contends that an amendment to withdraw an admission is not impermissible and that having regard to the circumstances learned Sub Judge ought to have allowed Ext.P3, application. Learned counsel also stated before me the circumstances under which according to the petitioners they happened to file written statement referring to their giving signed blank cheque at the time of the transaction.

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OP(C) No.1968/2012

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In Bollepanda P. Poonacha v. Madapa (2008 (2) KLT 9) at paragraph 13, it is stated that ordinarily the effect of an admission made in the pleadings shall not be permitted to be taken away. In Sushil Kumar Jain v. Manoj Kumar (AIR 2009 SC 2544) it is held that the admission made by the defendant in his written statement can be explained by filing an application for amendment of the same and that even if it is assumed that there was admission in the written statement, such admission can be explained by amendment of the written statement even by taking inconsistent plea or substituting or altering his defence.

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Assuming that there is any admission contained in Ext.P2, written statement filed by the petitioners ( I am not deciding whether there is any admission or not) I am not inclined to think that they must be permitted to amend the written statement as sought for in Ext.P3. By filing Ext.P3, application attempt of the petitioners is to remove the statement in Ext.P2, written statement that petitioners gave signed blank cheque as security and incorporate a plea that the 1^st petitioner gave the blank cheque signed by him as security. That attempt, I am inclined to think, cannot be permitted. Hence the learned Sub Judge was right in refusing to allow Ext.P3, application.

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Learned counsel requested that petitioners may be permitted to file additional written statement explaining the admission (so called) in Ext.P2, written statement. It is pointed out by the learned counsel that the court has power under Order VIII, Rule 9 of the Code of Civil Procedure to permit a party to file pleadings subsequent to the written statement.

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OP(C) No.1968/2012

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That is a matter which the learned Sub Judge has to decide if any such application is preferred, having regard to the facts and circumstances of the case, the position of law on the point and after hearing the parties. If any such application is preferred, learned Sub Judge shall consider that application and pass appropriate orders.

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With the above direction, this Original Petition is dismissed.

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THOMAS P.JOSEPH, Judge.

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cks

K.P.Haridas v. M.a.Kalyanakrishnan

Case brief

What is this about?

What did the court decide?

K.P.Haridas v. M.a.Kalyanakrishnan

Case brief

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