Sabyasachi Mukharji, J. - (1.) This appeal is arising out of an order passed and judgment delivered by Mr. Justice Salil K. Roy Chowdhury on the 27th April, 1980 dismissing an application for amendment of written statement filed by defendant No. 2. It appears that a suit was filed in this case by the United Commercial Bank, the plaintiff on the 22nd June, 1970 against the principal debtor, which was a company being wound up by the Company Court by an order dated the 23rd July, 1979. Subsequently the plaintiff had obtained leave under Section 446 of the Companies Act, 1956 to continue the suit against the Official Liquidator, so far as defendant No. J was concerned which was the company in liquidation and by an order dated 3rd Dec., 1979 such leave was granted and the plaintiff took out an application under Chap. 13A of the Original Side Rules of the Calcutta High Court for summary judgment. The defendant No. 2, the present appellant also took out an application for particulars of the plaint as well as leave to file the written statement. Both these applications had appeared before the learned trial Judge and by an order dated the 15th Feb., 1980 the hearing of the suit was expedited and the defendant No. 2 was directed to file its written statement within one week from date, cross order was given for discovery. Direction was given for inspection forthwith thereafter and the suit was directed to appear in the list for hearing irrespective of part heard on the 5th March, 1980 at the top of the list. The suit duly appeared in the list but the defendant No. 2 had asked for time on that occasion as he could not discover the documents and the time was granted. On the 31st March, 1980, an application, resulting in the order of the learned trial Judge, was made by defendant No. 2 asking for leave to amend the written statement. In this connection, it would he appropriate to state, as we have mentioned, that the suit was against two defendants, viz., defendant No. 1 which was a company in liquidation and the defendant No. 2 who was the guarantor. The suit was for money claim against the company in liquidation and it was alleged that the defendant No. 2, the present appellant had guaranteed the repayment, in writing furnished to the plaintiff, of the outstanding dues of the plaintiff from the defendant No. I in the account. We may incidentally point out that it appears that initially perhaps the plaintiff had contemplated to institute the suit against four defendants because in para 2 of the plaint it was stated: "The defendants Nos. 3 and 4 were at all material times and are the Directors of the defendant-company." It was thereafter stated that the defendant No. 2 too was a Director of the defendant-company. But the suit as filed does not contain any allegations, as appearing from the Paper Book, against defendants Nos. 3 and 4, who were described to be the other Directors of the company. Be that as it may, the suit was filed for certain money in cash credit account against the defendant No. 1 and defendant No. 2 as guarantor. In the written statement filed by the defendant No. 2 it was stated in para 8 as follows: "8. With reference to para 12 of the plaint, the defendant denies that this defendant has guaranteed the repayment of the outstanding dues of the plaintiff in the said accounts either duly or at all or that there is any question of this defendant failing or neglecting to pay to the plaintiff as alleged or at all. This defendant disputes that any demand was made on this defendant, as alleged or at all. Save as aforesaid, this defendant denies each and every allegation contained in para 12 of the plaint." In para 10, it was pleaded that further and/ or in the alternative and/or in any event, the defendant No. 2 took certain defences which were stated in various clauses in sub-paras (i) to (ix). In Sub-clause (vi) of paragraph 10 the defence was as follows: "(vi) The alleged provision in the contract of guarantee which purports to affect the rights conferred on this defendant as guarantor under Sections 133, 134 and 135 of the Contract Act is illegal, contrary to law, null and void and no effect can be given thereto."
(2.) In the amendment which the defendant No. 2 was seeking in the application before the learned trial Judge, the defendant No. 2 wanted to plead as follows: "At the time when the alleged guarantee was offered by this defendant one Mr. Satya Bhusan Chakrabarty, an Industrialist and the owner of Dragon Engineering Works, who carries on business at 457. Grand Trunk Road, Howrah-2, had guaranteed for the repayment of the dues of the bank to the extent of three lakhs in the presence of the then Bank Manager. It was agreed that the alleged guarantee offered by the defendant No. 2 will not come into effect unless all remedies were exhausted against the said Satya Bhusan Chakraborty. The plaintiff-bank agreed to such proposal and on such representation and the agreement made by the Bank through the then Manager this defendant offered his alleged guarantee to the extent of Rs. 2,00,000/- knowing full well that he will never be called upon to pay that money. It appears now that the plaintiff-Bank has compromised and/or exonerated Satya Bhusan Chakraborty from any liability. This defendant submits that in the circumstances the alleged guarantee offered by this defendant has come to an end and he is not liable to pay any amount having regard to the fact that the guarantee by Satya Bhusan Chakraborty has been released behind the back of this defendant and/or without his consent." This application, as we have mentioned before, came up before the learned trial Judge and he had dismissed this application.
(3.) From the judgment, it appears, the learned trial Judge was of the view that this application was made belatedly to defeat the claim of the plaintiff. Secondly, the learned trial Judge was of the view that this defence was inconsistent with the defence already taken by the defendant No. 3. It further appears that the learned trial Judge was of the view that version sought to be pleaded in the written statement was in the words of the trial Judge "tissue of lies thought out by the defendant No. 2 and his lawyers only to delay the matter as long as possible". The learned trial Judge was of the view that this was a frivolous application and if such an application was allowed no suit could be heard. The learned trial Judge further emphasised that as the company was in liquidation, the matter should be heard expeditiously. We may incidentally point out that it is true that the hearing in Company matters particularly the companies which are in liquidation should be done expeditiously but it is not a suit by a company, in liquidation, seeking to recover money from its debtor for liquidation of its debts. It is a suit against 'he company in liquidation and in respect of which the directors of the company, which is in liquidation, were being sought to be made liable as guarantors. The propriety of the said decision of the learned trial Judge refusing to allow the amendment is the subject matter of appeal before us.;