THE HON’BLE SRI JUSTICE G.V.SEETHAPATHY APPEAL SUIT No.176 OF 1994 DATED:26-08-2010 ORDER: This appeal is directed against the judgment and decree, dated 15-10-1993, in O.S.No.198 of 1989 on the file of the learned Subordinate Judge, Nizamabad, wherein the said suit filed by the appellant herein- Syndicate Bank, Nizamabad, for recovery of a sum of Rs.1,03,668.41ps, was dismissed. 2. Heard learned counsel for the appellant bank and the learned counsel for the respondents. Perused the records. 3. According to the appellant bank, respondents- defendants were sanctioned O.D.facility of Rs.50,000/- for meeting their fertilizer business and the 1st defendant created equitable mortgage in respect of an extent of 188.66 sq.yds by way of security for the loan and the defendants also agreed to pay the interest @ 17.5% p.a. and in spite of demands, defendants did not discharge the debt which fell due in a sum of Rs.1,03,668.41 ps from the date of filing of the suit. 4. 1st defendant filed written statement denying the suit transaction and also denying the execution of any documents in the year 1986 in connection with the suit transaction or execution of the promissory note on creation of the equitable mortgage. According to them, they availed O.D.facility in the year 1983 and equitable mortgage was created at that time and the said debt was discharged subsequently. It was further contended by the defendants that the plaintiff bank, taking the advantage of the signatures of the defendants on blank formats, fabricated the suit document and filed the suit as if the defendants entered into a fresh transaction in 1986. 5. On the strength of the pleadings, the trial Court framed the following issues: 1. Whether the defendants have availed the O.D. facility from the plaintiff bank and agreed to pay interest @ 17.5% p.a.? 2. Whether the D1 has mortgaged his plot in favour of the plaintiff bank for the suit loan? 3. Whether interest claimed by plaintiff is excessive and exorbitant? 4. What relief the plaintiff is entitled to? 6. During the trial, P.W.1 was examined and Exs.A1 to A23 were marked. D.Ws.1 and 2 were examined and no documents were marked on behalf of the defendants. 7. On a consideration of the evidence available on record, the trial Court held on issue No.1 that the defendants have not availed O.D. facility from the plaintiff on 12-03-1986. On issue No.2, it was held that the plaintiff failed to prove that D1 mortgaged the plot in favour of the plaintiff bank in connection with the suit. Consequently, on issue No.3, the trial Court held that the question of claiming interest does not arise and accordingly the suit was dismissed. Aggrieved by the same, plaintiff bank preferred the present appeal. Along with the appeal, the appellant-plaintiff filed A.S.M.P.No.2948 of 1994 under Order 6 Rule 17 CPC seeking permission to amend the plaint and A.S.M.P.No.2949 of 1994 under Order 41 Rule 22 CPC seeking permission to file documents as additional affidavits. According to the appellant-plaintiff, the O.D. facility was extended to the defendants in a sum of Rs.50,000/- in 1983, which is O.D.Account No.3 of 1983 and on the request of the defendants the same was renewed in 1986 as O.D.Account No.5 of 1986 and a separate set of documents, pertaining to the same, were executed and based on the said cause of action only the suit is filed. It is further pleaded by the appellant-plaintiff in the affidavit filed in support of the applications that by inadvertence, the factum of extending the O.D. facility in 1983 is not mentioned in the plaint and the said omission was neither wilful nor deliberate and the documents relating to the original transaction of 1983 were also handed over to the learned counsel who filed the plaint but due to inadvertence they were not filed into the Court. The appellant-plaintiff, therefore, contends that the suit transaction of 1986 is in renewal of the earlier transaction of 1983 and there are two separate sets of documents executed by the defendants and the documents, pertaining to 1986, renewal transaction based on which the cause of action arose, have been filed into Court along with the plaint and the other set of documents pertaining to the original transaction of 1983 are now being filed in the appeal in view of the defence taken by the defendants and the observations made in the impugned judgment regarding their non-filing. 8. Learned counsel for the respondents would contend that receiving the additional documents at this stage in the appeal is not called for and the failure to file those documents during the trial is not satisfactorily explained. 9. According to the appellant-plaintiff though the documents of 1983 were also handed over to the learned counsel, who filed the plaint, they were not filed due to mistake and inadvertence and the suit is based on the renewal transaction of 1986 and the necessity to file the said document has now arisen in view of the adverse finding recorded by the trial Court regarding the non-filing of those documents. The defence of the respondents- defendants is that they executed only one set of documents in 1983 and even at that time they only signed on blank formats and taking advantage of the signatures on blank formats, the plaintiff bank fabricated the suit documents as if O.D. facility was extended in 1986. 10. In order to decide the dispute between the parties, it is necessary to consider whether there was only one set of documents executed in 1983, as alleged by the defendants, or there were two sets of documents, one executed at the time of original transaction in 1983 and the other one at the time of renewal in 1986, as contended by the plaintiff. The documents, which are now filed along with A.S.M.P.No.2949 of 1994 are therefore relevant and necessary for a just and proper adjudication of the dispute between the parties. Similarly, the amendment of the plaint sought for by the appellant-plaintiff in A.S.M.P.No.2949 of 1994 is also considered to be permissible and necessary for a just decision in the case. It is well settled principle that amendment of the pleadings can be permitted at any stage of the proceeding and even at the appellate stage when such amendment is considered necessary for the purpose of determining the real questions in controversy between the parties. It is needless to state that the defendants would be entitled to file additional written statement on the plaintiff making the amendment of the plaint. In the circumstances, the impugned judgment and decree, 15-10-1993, in O.S.No.198 of 1989 on the file of the learned Subordinate Judge, Nizamabad, are set aside and the matter is remitted to the Court of the learned Senior Civil Judge, Nizamabad for fresh disposal according to law, after permitting the plaintiff to amend the plaint as proposed in A.S.M.P.No.2948 of 1994 and receiving the documents filed along with A.S.M.P.No.2949 of 1994, subject to their proof and relevancy and giving an opportunity to the defendants to file additional written statement, and framing additional issues, if necessary, and giving opportunity to both sides to adduce such further evidence as they may intend. 11. Having regard to the fact that the suit is of the year 1989, learned Senior Civil Judge shall dispose of the same within a period of four months from the date of receipt of a copy of this order. 12. In the result, Appeal Suit is disposed of as stated above. There shall be no order as to costs. _______________________ G.V.SEETHAPATHY, J 26th August, 2010. Tsy