A.S. Gadkari JUDGMENT
R.M. Borde, J.
1. Heard.
2. Rule. With the consent of the parties, petition is taken up for final hearing at the admission stage.
3. The petitioner is objecting to the Order passed by the Chairperson of the Debt Recovery Appellate Tribunal rejecting the appeal preferred by the petitioner-original applicant challenging the Order passed by the Debut Recovery Tribunal dated 28.12.2014 rejecting application seeking leave to amend the pleadings. The original-applicant, petitioner herein presented the application bearing No. 29 of 2011 to the Debt Recovery Tribunal at Mumbai under Section 19 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (R.D.D.B. Act.) claiming a decree against the respondent-original debtor entitling the applicant to recover a sum of Rs. 27,23,33,693.34 together with interest. There are certain other reliefs also claimed in the application which need not be recorded here. During the pendency of the proceedings, the application came to be tendered by the original-applicant seeking leave to amend the original-application. By virtue of the amendment application, applicant seeks to incorporate prayers claiming recovery of arrears i.e. sum of Rs. 64,25,64,810.23 due and payable by the debtor towards monthly settlement from 26.2.2010 to 30.11.2012 under the said derivative transactions. The application tendered by the original applicant has been turned down by the Debt Recovery Tribunal by Order dated 6 October 2016, mainly on the ground that the proposed amendment under which the recovery of additional amount is claimed does not relate back to the date of presentation of original-application. The Tribunal has also taken view that the proposed amendment is based on a new cause of action and shall be effective from the date of the proposed amendment or the proposed amendment introduces a further claim. It is recorded in the Order that original application must be tried only on the original cause of action which is a settled principle of law and that the proposed amendment would relate back to the original application. The adverse order passed by the Debt Recovery Tribunal was subject matter before the Appellate Court where the appeal has also been rejected. It is the contention of the petitioner that the proposed amendment thus relates to the subject matter of the suit and it does not necessarily change the character of the same.
4. Our attention is invited to the pleadings contended in para- (xii) of the original application No. 29 of 2011, wherein it is averred by the original-applicant/petitioner herein that the payments under the various other settlement dates have not yet fallen due and hence the applicants (petitioners) have not claimed any other amounts under the said derivative transaction. However, the applicants reserve their rights to alter, amend and/or modify their claim or initiate any further recovery proceedings in respect of the amounts falling due under the remaining monthly settlement dates. It is contended by the petitioner that the claim is raised by way of amendment under the other settlement dates which did not fall due on the date of presentation of the original-application. The cause of action is continuing one. If the amendment, as proposed, is not allowed, it will lead multiplicity of the proceedings. It is also contended that the continuing cause giving rise to claim during the pendency of proceedings can be a matter for consideration in the pending original-application presented by the petitioner. It is true that the petitioner does have an option of presenting the separate recovery proceedings in respect of amount claimed under the amended pleadings, however, it cannot be controverted that the additional claim raised by introducing amended pleadings is part of the same transa........