- (1.) THE defendant No. I used to take close from Bharat Coking Coal Limited and supply the same to the defendant No 5, Durgapore Project Limited. The defendant No. I had a cash credit account with the plaintiff Bank who advanced money in that account to the defendant No. I for this business. The plaintiff Bank instituted the suit for recovery of its outstanding dues in the said account with the allegations hat the defendant No. I had assigned, hypothecated or charged in favour of the plaintiff, the bills raised by the defendant No. I on the defendant No. I in respect of the price of coal supplied. The Defendant No. I filed its written statement denying inter alia the allegations of charge or assignment of the bills. It was alleged in the written statement that the plaintiff Bank was the collecting agent in respect of the said bills but in breach of its duties, the plaintiff Bank did not take any step for realization of the bill amounts from the defendant No. 5 for liquidating the liability of the defendant No. I in the said account. Instead the plaintiff went on charging high rate of interest causing serious loss and damages to the defendant No. I. In paragraph 23 of the said written statement, the defendant No. I reserved its right to institute a separate suit for damages against the Bank for the above loss. There was no prayer under order 2 rule 2 of the civil Procedure Code.
(2.) THE suit was partly heard before this application for amendment of the said written statement was taken out by the defendant No. 1. The defendants Nos. 2 and 3 are interested in the defendant no. 1. At the opening of the case the defendants Nos. 1to 3 admitted that the plaintiff Bank was an assignee in respect of the said bilk and as such no issue was framed on that point. All the parties proceeded on the basis that the plaintiff Bank was an assignee as stated above.
(3.) IN the present application, the petitioner wanted to amend the written statement by deleting the allegations in the written statement denying the assignment. This prayer for amendment was resisted by the plaintiff. Mr. Sankar ghose, Barrister-at-law appearing for the plaintiff submitted that averments in the original written statement regarding assignment were in the nature of "admission" in the pleading by the defendant No. 1 and deletion of such allegations would amount to retraction of those admission by the defendant no. 1 to the prejudice of the plaintiff and such amendment should never be allowed. He relied on certain authorities in support of his contention. But in view of the facts of this present case: where the petitioner has already abandoned its challenge to the allegation of. assignment and all the parties have been proceeding on the. basis of admitted position that the plaintiff is an assignee in respect of the said bills, I cannot: accept the submission of Mr. Ghose, the cases cited by him on this point are: not applicable on the facts and circumstances of this case and I refrain from dealing with the same. In my view, if. the allegations regarding denial of assignment in the written statement are: allowed to remain, that would create serious complications in future and as such the amendments asked for should be allowed in the interests of justice.;