- (1.) THIS revision petition is directed against the order of the Subordinate Judge whereby he refused permission to the defendant-petitioners to amend the written statement.
(2.) THE plaintiff-respondent-bank filed a suit for recovery of Rs. 5,42,099. 30 against the defendant-petitioners. The defendants pleaded that Ved Prakash and Devinder Kumar were partners of Ganesh Dal'oil and General Industries, Raman Mandi, and were entitled to operate upon the accounts of the firm in the bank. The defendants at a later stage sought amendment of the written statement to incorporate the plea that the plaintiff-bank had been making payments unauthorisedly to Bhushan Kumar who was a stranger to the firm. The amendment was disallowed. The learned trial judge in his order has observed that the defendants could argue the matter at the arguments stage. The learned trial judge is in error in refusing the amendment of the written statement. The defendants can take inconsistent plea in the written statement. The plea sought to be added by way of amendment is not contrary to the pleas taken earlier. They want to take a specific plea that the bank has been making payment to a person who is not authorised to take the payment on behalf of the firm. The amendment ought to have been allowed. Mr. Ashok Bhan, Senior Advocate, who appears for the petitioner has stated at the Bar that his client will not lead any evidence and the evidence already brought on record will be referred to in support of the plea sought to be raised by way of amendment. The plea sought to be raised ought to have been allowed.
(3.) MR. Mehtani, learned counsel for the bank vehemently argued that the application for amendment was belated and the order under challenge is well reasoned and suffers from no infirmity. The submissions of learned counsel on closer scrutiny have to be repelled. The rules of procedure are hand-maids in the administration of justice. These have to be pressed into service to substantiate the cause of justice and not thwart it. If what is said by Mr. Ashok Bhan is correct, the bank will not be entitled to a decree for the amount which had unauthorisedly been paid to Bhushan Kumar. The firm can only be held liable for the actual payment made to it or to the persons authorised by it. The firm has to act through its partners and if any payment has been made or received by a person other than the person or the persons authorised by the firm, the firm cannot be held liable, I allow the amendment of the written statement and permit the defendant-petitioners to introduce the plea in the preliminary objections that the payment made by the bank to Bhushan Kumar was unauthorised and was not for and on behalf of the firm, namely, Ganesh Dal Oil and General Industries. However, this amendment is subject to payment of Rs. 2,000 as conditional costs. For payments to come up on June 2, 1989.;