ANNES COLLECTION PVT LTD Vs. STATE BANK OF INDIA
DEBTS RECOVERY APPELLATE TRIBUNAL
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(1.) THIS Miscellaneous Appeal is directed against the order dated 3.2.2005 passed by the DRT (Andhra Pradesh & Karnataka) at Bangalore in IA-727/2004 in OA-251/1998.
Heard the learned Advocates for the appellant and the 1st respondent.
(2.) Admittedly, the OA was decreed in favour of the respondent Bank as early as on 31.1.2002. That thereafter, the respondent Bank filed an application for amendment of the Schedule 'C' in the OA, in the year 2004, stating that the 2nd defendant mortgaged the property described in the Schedule 'C' of the OA and by mistake the 'C' Schedule property was described as HAL II Stage instead of HAL III Stage and it is a typographical error, and the same was allowed by DRT only on the ground that the amendment is permissible even after the disposal of the OA or even the second Appeal. The said order is under challenge in this appeal.
The learned Advocate for the appellant submits that he never mortgaged the property as claimed by the respondent Bank and the amendments sought for is not only belated but also not sustainable in law for the reason that the respondent Bank has not filed any document to show that the appellant had mortgaged the property as originally set out in the Schedule 'C' or as they require to amend it. The witness examined on behalf of the respondent Bank AW-1 one Mr. M.S. Jayakumar, has not deposed anything about the mortgage said to have been executed by the appellant in favour of the respondent Bank in respect of the 'C' Schedule. On the other hand, in his cross-examination, he had deposed, "The document showing the creation of original mortgage as security during 1992 is not produced. Even the title deeds deposited at the time of creation of mortgage are not produced." The evidence of this witness is of no use for the respondent Bank, when especially the mortgage was challenged by the appellant, the respondent Bank should have taken all steps to prove the mortgage, but they did not do so, for one reason or the other. With all pain I want to observe that the Banks are conducting the trial of the OAs in a most cavalier and careless fashion and this kind of practice has got to be discouraged and deprecated. When public money is involved, the Banks are expected to conduct the OA proceedings in a more careful way and the evidence or AW-1 is not worth even the paper in which it was recorded. Even the evidence or AW-2 is of no use, to sustain the case of the respondent Bank though AW-2 states in the cross-examination that separate agreements were taken in respect of equitable facilities, they have not chosen to file any document and no reason has been given for not having filed those documents. It is very clear that the respondent Bank was so careless and irresponsible in conducting the case and they have not taken even the preliminary care, which is required to advance its case.
(3.) AS far as the question of law is concerned that amendment can be allowed after the disposal of the OA or even at the stage of the second appeal, there is absolutely no quarrel or dispute over the said proposition, as Order 6 Rule 17, CPC opens with the sentence, "The Court may at any stage of the proceedings allow either party to alter or amend his pleadings." But that is not the question involved in this case. The respondent Bank has not chosen to substantiate that the appellant had mortgaged the property over which they made a claim and wants to make a claim by way of amendment and in the absence or the required materials, the amendment sought by the respondent Bank is not sustainable.;
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