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TMI Blog1988 (12) TMI 340X X X X Extracts X X X X X X X X Extracts X X X X ..... the Bank wrote a letter to the defendants sending therewith a statement showing the outstanding dues, viz. the above mentioned Bills of Exchange. Reference was made in the said letter to the various intimation letters sent by the Bank to the defendants. The defendants were called upon to ascertain the position at their end and to make the payment of the bills at an earlier date. To this letter, a reply was sent by the defendants on September 7, 1983 which is the most crucial document having bearing upon the present application for amendment. The said letter dated September 7, 1983 contains an unequivocal admission on the part of the defendants that a total sum of ₹ 6,14,075.01 are due from the defendants to the Bank. There is no dispute that the above mentioned two Bills of Exchange, which are the subject of this present Summary Suit, are part & parcel of the said Bills of Exchange, liability in respect of which was specifically admitted by the defendants. It is stated by the defendants in the said letter dated July 18, 1983 that the Bank's letter demanding the payment for the said bills was received by the defendants. What is stated further is extremely crucial. This is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Court, which was no doubt dismissed, but the hearing of the suit was expedited by the Supreme Court, which is the reason why this Summary Suit is reaching hearing at least at the fag end of the year 1988. 11. Almost at the time when the suit reached hearing, this application was presented by the plaintiffs for amendment of the plaint. By the amendment, what is sought is the reliance upon the above mentioned letter dated September 7, 1983 as an admission of liability or as a fresh cause of action. The plea is that apart from their liability under the Hundi, the defendants are also liable for the amount claimed under the suit by virtue of the said letter dated September 7, 1983. 12. This amendment is most seriously and strenuously contested by Mr. Vajifdar, appearing for the defendants. 13. I will presently mention the planks of attack on this endeavour of amendment. 14. In support of the application for amendment, Mr. Zaiwalla placed particular reliance upon the latest judgment of a Division Bench of this Court in Dena Bank v. Gautam Ratilal Shah as also upon the judgment of the Supreme Court in Pirgonda Hongonda Patil v. Kalgonda Shidgonda Patil 15. In substance, the plea of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... then the amendment sought as late as in December 1988 would be barred because the suit filed as late as in December 1988 on that cause of action would be barred by limitation. 21. Let me deal with this contention, which, in my opinion, is somewhat fallacious having regard to the peculiar facts of the cases such as this. 22. In my opinion, in the instant case, the letter dated September 7, 1983 did not constitute a fresh cause of action at all. The letter no doubt incorporates an unequivocal admission of liability, but it is admission of liability already incurred. It is not as if that a new liability is created by the letter. It is an admission of the previous liability. One can say that the liability that is admitted is by the valid Bills of Exchange. One can also say that the liability which is admitted is the one which relates to the original consideration that was received by the defendants from the drawers. The drawers had a right to receive payment from the drawees, viz. the defendants. When the Bills of Exchange were discounted by the Bank, the Bank only stepped into the shoes of the drawers. The corresponding right of the payment of consideration by drawee to the drawer, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The only difference is that in the case of the negotiable instrument, such as the Bills of Exchange or Hundi, the consideration is presumed to have been received by the drawee until he disproves it. In the absence of such negotiable instruments, the consideration has to be proved by the plaintiff. But in both the cases, the existence of consideration is the necessary postulate. 24. This being the position in my opinion, the suit is not being filed on the basis of the letter dated September 7, 1983 as a fresh cause of action. The cause of action is the same; it is only sought to be proved with the help of the letter; dated September 7, 1983. The cause of action in the present suit originally was the Bills of Exchange. Now, an added cause of action, which was the concurrent cause of action and intertwined cause of action, is sought to be pleaded, viz. the original consideration. In my opinion, it can be safely said that the original consideration and the Bills of Exchange are the two sides of the same transaction. The Bills of Exchange cannot exist without consideration. It may be that a suit on original consideration cannot be filed as a summary suit if the original consideration ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... undi is also for recovery of consideration. 30. Once this position is accepted, then the plea that the nature of the suit would be changed if the amendment is allowed loses its force. 31. Let me now turn to the authorities cited across the bar. It would be better referring to the judgment relied upon by Mr. Zaiwalla, which, in my opinion, really speaking, clinches the issue. 32. A mere statement of facts would be enough to show that the question involved in that case was almost identical as the one presented by the present application for amendment. In fact the facts of that case were even grosser. The negotiable instrument in that case was a promissory note, not a bill of exchange. But it cannot be disputed that distinction is of no relevance. The plaintiffs Dena Bank filed a summary suit in 1975 on a promissory note executed by the defendants on January 31, 1973. The plea of the defendants in reply to the summons for judgment was that some of the defendants were only guarantors and the real principal debtor was a limited Company, to which the plaintiffs had given the pro-note. The defendants' firm plea" was that the suit which was sought to be filed as a summary suit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rom the very beginning and the plaintiffs had deliberately, on the legal advice, chosen not to mention the same in the plaint. But according to the Court, this made no difference. In substance, the Court found that this mistake was the result not only of "in effectiveness or incompetence" on the part of the pleader, "which has got to be forgiven", but was also the result of "obduracy and obstinacy" of the pleader, which according to the Court, stood on the same par. The Court did see that this was a border line case. But according to the Court, interest of justice did require that the amendment should be allowed since that was not a case where the defendants could not be compensated in terms of money. It was further observed that to insist that they must be protected by the law of limitation against the claim as now made on a proper basis would be to make a fetish of holding procedural technicalities at the cost of substantial justice. 37. With very great respect, apart from the fact that as a judgment of the Division Bench, it is very much binding upon me, I am in full agreement with the letter and spirit of the law declared by the statute. In my opi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , is a complete answer to the defendants' pleas set out above. 42. My attention is also invited to the fact that identical view has been taken by another learned Single Judge of this Court (B.A. Masodkar J.) in Raja-ramka Pulp and Paper Mill Ltd., Tumsar v. Central Bank of India, Nagpur [1974] Mh. L.J. 985. In that case, the suit was filed on a promissory note and amendment was subsequently sought for introducing averments in the plaint to base the cause of action also upon the original consideration. This Court observed that mere title to the plaint does not indicate the real nature of the pleadings of the parties. The learned Judge found that the defendant had fully understood the pleadings of the plaintiffs. 43. I may mention here that the present is the identical case where the defendants have fully understood the nature of the plaintiffs case. This letter dated September 7, 1983 was produced at the time of the rejoinder. It is the letter written by the defendants themselves. They are, therefore, fully aware of the existence as well as meaning of the said letter and the reason why the plaintiffs have been relying upon the same. 44. This Court has further observed in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... khbhai Jechandbha [1933] A.I.R. Bom. 476 : ; (1933). Bom. L.R. 965. 51. I do not wish to go into the question whether Sarafalli MahomedalH''s case (supra) over-rules Burjorji Jivanji's case (supra) on this particular question. The fact remains that the law laid down by the Division Bench of this Court in Dena Bank v. Gautam Pawlal Shah (supra) as also the law laid down by the Supreme Court in Pirgonda Hongonda Patil's case (supra) results in the legal position that the law laid down in the two Judgments, mentioned above, Burjorji Jivanji Todiwalla v. Hormusji (supra) and Sitaram Krishna Padhye v. Chimandas Fatehchand (supra) is no longer a good law. 52. Both on authorities as well as on first principle, therefore, I find it difficult to agree with the exposition of law in the above mentioned authorities. I am fairly of the opinion that this is a case where there exists no impediment in the way of the Court to allow the amendment. This is in addition to the legal position that justice of the case does require the opportunity to the plaintiff to amend the plaint as prayed for. 53. The result is that the application for amendments is allowed. The leave to amend is g ..... X X X X Extracts X X X X X X X X Extracts X X X X
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