1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR WRIT PETITION NO. 1028/2010. Mah. State Electricity Distribution Co.Ltd. -: versus :- M/s. Shabbir Oil Agencies. Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. CORAM : B.P. DHARMADHIKARI, J. DATED : JUNE 09, 2010. Heard finally by consent of Shri S.V. Purohit, learned counsel for petitioner and Shri V.R. Choudhari, learned counsel for respondent. Shri Purohit, learned counsel states that the respondent / plaintiff has filed Special Civil Suit No.140/1995 claiming balance amount of Rs. 87,813.29 towards non payment of his bills. Petitioners filed their written statement and raised a counter claim of Rs. 3,88,415.15. It’s counsel went to attend a criminal matter and then found that another criminal case filed at the instance of petitioners against the present respondent and some officers of petitioner Company pointing out defalcation and mis appropriation. After getting knowledge of that criminal complaint, the amendment to written statement was sought by moving 2 application at Exh.98. The application has been rejected erroneously on the ground that it has been filed after 10 years and after trial had commenced. He contends that the facts clearly show that relevant material was not pleaded in written statement and in the interest of justice, such amendment ought to have been allowed. Shri Choudhari, learned counsel for respondent/ plaintiff points out that written statement was filed with counter claim on 22.04.1998 and no steps thereafter were taken to bring such facts on record. The criminal prosecution is at the instance of petitioner / company and hence it cannot be accepted that it had no knowledge. He relies upon the observations made in paragraph no.6 of the impugned order to urge that rejection of amendment application does not require any interference in writ jurisdiction. The facts above clearly demonstrate that criminal prosecution has been filed by the petitioner Company against the respondent and some of its own officers alleging defalcation and mis appropriation. The defalcation and mis appropriation is in relation to the transaction for which bills are raised by respondent plaintiff and non payment thereof has been claimed. Thus relevance of criminal prosecution cannot be disputed. It is apparent that relevant material has not been pleaded in the written statement. Petitioner Company is an artificial person and the circumstances in 3 which this material could not be pleaded in written statement are therefore not very relevant. The filing of criminal prosecution by it against some of its own officers who allegedly acted in collusion with respondent / plaintiff clearly show that the material needs to be taken on record. The Court below has erroneously refused the application for amendment by applying the amended provisions of Order VI Rule 17 of C.P.C. and by placing reliance upon the judgment of Hon’ble Apex Court reported at 2009 [4] Mh.L.J. 30 (Vidhyabai and others .vrs. Padmalatha and another). The suit has been filed in the year 1995 and has been re-registered in the year 2008 as Special Civil Suit No. 6/2008. In this situation, the application for amendment as moved by the petitioner / defendant is allowed, however, the same shall be subject to payment of costs of Rs. 5000/- by petitioners to present respondent. The amount of costs be deposited with the Trial Court by 30.06.2010. If the costs are so deposited, trial Court to permit the petitioner to carry out necessary amendment and shall thereafter permit the respondent / plaintiff to take further appropriate steps in the matter in accordance with the law. Writ Petition is thus allowed. Rule accordingly. JUDGE Rgd.