CM (M) No.1142/2009 Page 1 of 4 39 *IN THE HIGH COURT OF DELHI AT NEW DELHI + CM(M) No.1142/2009 Date of Decision: 7th December, 2009 % M/S BHARAT BHUSHAN ..... Petitioner Through : Mr. Virender Goswami and Ms. Soni Singh, Advs. versus M.P. GOEL ..... Respondent Through : Mr. D.R. Bhatia, Adv. CORAM :- THE HON'BLE MR. JUSTICE J.R. MIDHA 1. Whether Reporters of Local papers may YES be allowed to see the Judgment? 2. To be referred to the Reporter or not? YES 3. Whether the judgment should be YES reported in the Digest? JUDGMENT (Oral) 1. The petitioner has challenged the order of the learned Tribunal whereby the respondent’s application under Order 6 Rule 17 of the Code of Civil Procedure has been allowed. 2. The respondent has filed a suit for recovery of Rs.2,31,000/- against the petitioner which is pending before the learned Trial Court. The averments made in the plant inter-alia are that the respondent paid a sum of Rs.1,50,000/- to the petitioner by means of two cheques bearing No.015941 dated 5th October, 1994 for Rs.1,00,000/- issued by Bank of Maharashtra and a cheque bearing No.015952 dated 24th October, 1994 for Rs.50,000/- and both these CM (M) No.1142/2009 Page 2 of 4 cheques were debited from the account of the respondent and were credited to the account of the petitioner. 3. The only amendment sought to be made by the respondent is that the aforesaid two cheques were drawn on Punjab National Bank and not on Bank of Maharashtra and, therefore, the words “Bank of Maharashtra” in para – 6 of the plaint be substituted with “Punjab National Bank”. The reason given by the respondent for making this amendment is that there was a bonafide and clerical mistake on the part of the respondent. The respondent has account in Bank of Maharashtra as well as Punjab National Bank and the respondent inadvertently mentioned Bank of Maharashtra instead of Punjab National Bank. The learned Tribunal has allowed the amendment on the ground that the amendment does not change the nature of the suit or alter or substitute a new cause of action and the power to grant amendment of pleadings is intended to serve the ends of justice and cannot be governed by narrow or technical limitations. The learned Trial Court has further held that the Rules of procedure are intended to be a hand-maid to the administration of justice. The learned Tribunal has allowed the amendment subject to cost of Rs.5,000/-. 4. The learned counsel for the petitioner submits that by virtue of the amendment of Code of Civil Procedure by Act 22 of 2002, the amendment cannot be allowed after the trial has commenced unless the Court comes to the conclusion CM (M) No.1142/2009 Page 3 of 4 that in spite of due diligence, the parties could not have raised the matter before the commencement of trial. 5. The learned counsel submits that there is no due diligence on the part of the respondent. However, on the query by this Court, the learned counsel for the petitioner does not dispute that the petitioner has received the payment of Rs.1,50,000/- by means of two cheques bearing No.015941 dated 5th October, 1994 for Rs.1,00,000/- and No.015952 dated 24th October, 1994 for Rs.50,000/- but the same were not received by the petitioner from the respondent but from one Mr. Subhash Chand Goel in discharge of his own debt. 6. In the facts and circumstances of this case and also noting that the petitioner does not dispute the receipt of two cheques, this Court is of the view that the amendment sought by the respondent is necessary for determining the real issues between the parties and it shall not cause any prejudice to the petitioner. With respect to the due diligence, this Court is satisfied with the explanation given by the respondent that he had account in two banks and the respondent believed the cheque to have been issued from Bank of Maharashtra and this mistake was later discovered by the respondent when he filed the application for amendment before the learned Trial Court. The case for amendment, therefore, falls within the Proviso of Order 6 Rule 17 of the Code of Civil Procedure which provides that CM (M) No.1142/2009 Page 4 of 4 the amendment can be allowed even after the trial commenced. 7. For all the aforesaid reasons, the petition is dismissed. 8. Nothing stated hereinabove shall be construed as opinion on the merits of this case. J.R. MIDHA, J DECEMBER 07, 2009 mk