- 1 - rng IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.2948 OF 2010 Hiren Aluminium Limited & ors .. Petitioners vs Asset Reconstruction Co (Pvt) Limited & ors ..Respondents Mr.S.U.Kamdar Sr.Advocate with Mr.Amol Kharat,Mr.Ibrahim Merchant i.b K.V.Aiyar & Associates for Petitioners Mr.Shyam Mehta with Mr.Vinod Kothari i.b Apex Law Partners for Respondent no.1 CORAM: D.D.SINHA & MRS.MRIDULA BHATKAR,JJ DATE: 8th June, 2010 P.C. Heard. Rule. Rule returnable forthwith. 1. The writ petition is directed against the order dated 19th March 2010 passed by the Debt Recovery Appellate Tribunal Bombay in Misc.Civil Appeal No. 264 of 2009 whereby an appeal filed by the present petitioner (Original defendant nos. 6 and 7) came to be dismissed and order passed by the D.R.A.T.II Mumbai dated 11th August, came to be confirmed. The learned counsel for the petitioner has contended - 2 - that the appellate tribunal rejected the appeal of the petitioner mainly on three grounds namely (i) there was a delay in submitting the application for amendment by the petitioner. (ii) In the application for amendment the petitioner has taken up inconsistent pleas and (iii) that application filed by the petitioner for inspection of the documents before the D.R.T. was dismissed by D.R.T on 2nd April,2009 and appeal preferred against the said order was also dismissed and the writ petition was also dismissed by this court. 2. Learned counsel for the petitioner has submitted that so far as taking inconsistent pleas in the written statement is concerned, the law is well settled in this regard by the apex court in case of USHA BALASAHEB SWAMI AND OTHERS vs KIRAN APPASO SWAMI OTHERS (C.D.J 2007 SC 473. 3. It is contended that the observations made by the apex court in para 22 of the judgment would show that there is no blanket prohibition for taking inconsistent pleas in the written statement. 4. Learned counsel for the petitioner further - 3 - contended that merely because application filed by the petitioner for inspection of the documents came to be rejected by D.R.A.T. and the said order was confirmed by the appellate forums including High Court cannot be the ground for rejecting the amendment application of the petitioner. 5. It is further contended that in so far as delay is concerned, it is not necessary fatal in all cases if amendment is necessary to decide the real question in issue and inspite of due diligence the same could not be moved before commencement of trial. The impugned order is completely silent in this regard and therefore, the same is devoid of substance and cannot be sustained in law. 6. Learned counsel for the respondent-Bank has not disputed that the appeal of the petitioner was rejected by the appellate tribunal on above referred three grounds. However, it is contended that the original application was filed by the bank in the month of July, 2006 before the D.R.T.II Mumbai. The petitioner filed evidence of affidavit in the month of April 2008. Other defendants also filed evidence of affidavits. The petitioner for the first time in - 4 - that application filed an application for amendment on July, 2009 and therefore, the tribunal was justified in rejecting the application for amendment moved by the petitioner on the ground of delay. 7. Learned counsel for the respondents has contended that the plea taken by the petitioners in the amendment application in fact is not consistent with the original pleadings in the written statement and therefore, the tribunal was justified in rejecting the application even on this count. Similarly, the appellate tribunal was also justified in not showing indulgence since the application moved by the petitioner for inspection of the documents came to be rejected by D.R.A.T. and the said order was subsequently confirmed by the appellate forums. 8. We have considered the contentions raised by the respective parties and perused the impugned order as well as the decision of apex court cited by learned counsel for the petitioners. The appellate tribunal rejected the application moved by the petitioners for amendment of the written statement on above referred three grounds only. In so far as - 5 - the purport of Order 6 Rule 17 of the Code of Civil Procedure is concerned in para 17 of the judgment in the case of UMESH BALASAHEB SWAMI cited supra, the apex court has observed thus: From a bare perusal of order 6 Rule 17 of the Code of Civil Procedure it is clear that the court is conferred with power at any stage of the proceedings to allow alteration and amendments of the pleadings if it is of the view that such amendments may be necessary for determining the real question on controversy between the parties. The proviso to Order 6 Rule 17 of the code however, provides that no application for amendment shall be allowed after the trial has commenced unless the court comes to a conclusion that inspite of due diligence the party could not have raised the matter before the commencement of trial. However, proviso to Order 6 Rule 17 of the Code would not be applicable in the present case as the trial of the suit has not yet commenced. Similarly in so far as the aspect of taking inconsistent plea is concerned, the apex court in para 22 of the said judgment has observed thus : Keeping these principles in mind namely that in a case of amendment of a written statement the courts would be more liberal in allowing than that of a plant as the question of prejudice would be far less in the former than in the latter and addition of a new ground of defence or substituting or altering a defence or taking inconsistent pleas in the written statement can also be allowed. We may now proceed to consider whether the High Court was justified in rejecting the application for amendment of the written statement. - 6 - 9. In view of the observations made by the apex court in above referred paras, we are of the view that the appellate tribunal needs to re-consider the application of the petitioner for amendment of the written statement afresh. Since we are remanding the matter back to the appellate tribunal, we do not want to express anything on merits of the matter one way of the other at this stage and it is for the appellate tribunal to re-consider the issues afresh in the light of the decisions of the apex court, and in accordance with relevant provisions of law. Similarly, it is difficult to appreciate as to how rejection of the application for inspection of the documents filed by the petitioner can have any bearing or regarding the issue of grant or rejection of application for amendment filed by the petitioner has not been explained by D.R.T. though while rejecting the application for amendment this is one of the reasons mentioned in the impugned order by the lower appellate tribunal. 10. For reasons stated herein above, the impugned order dated 19th March 2010 is hereby quashed and set aside. The matter is remanded back to the Appellate Tribunal with a direction to re-consider - 7 - the application of the petitioner for amendment of the written statement in the light of the observations made by this court in this order afresh. 11. Considering the fact that proceedings for recovery of the loan amount were initiated by the bank way back in 2006, we direct the Appellate Tribunal to take a decision within a period of 30 days from the date of communication of this order. It is open for the parties to raise all contentions before the Appellate Tribunal. Rule made absolute in above terms. No order as to costs. D.D.SINHA,J MRS MRIDULA BHATKAR, J - 8 -