S. K. Mahajan,j. ( 1 ) THIS order will dispose of the application underorder6 Rule 17 Civil Procedure Code for amendment of the written statement filed by the defendant. Thefacts of the case in short are that the plaintiff had made a term deposit in the totalsum of-Rs. 6,00,000. 00 with defendant No. l and three term deposit receipts each forthe value of Rs. 2,00,000. 00 were issued by the defendant-Bank. The said receipts became due for payment on 8/12/1984. When theplaintiff on maturity of the said receipts went to the office of the defendant on 10thdecember, 1984, he was informed that payment cannot be made to the plaintiff onaccount of certain instructions received from the head office/regional office. Theplaintiff, therefore, filed the present suit under Order 37 of the Code of Civilprocedure for the grant of a decree for Rs. 6,27,270. 00. Leave to defend the suit wasgranted to the defendants by order dated 15/01/1987 and the defendantsfiled the written statement. The case as set up in the written statement by thedefendants was that the plaintiff alongwith Mr. Rajender Bhanot, Managing Director of M/s. Indo Travels Services Private Limited approached the defendant-Bankwith a request to furnish a bank guarantee to members of lata for payment to thesaid members of monies that might become due to them from the said M/s. Indotravels Services Private Limited. It is the case of the defendant that it gave aguarantee for Rs. 16,59,000. 00 dated 3/02/1984 unconditionally guaranteeing the payment to all and each member of IATA of all amount that may becomedue and payable by M/s. Indo Travels Services Private Limited from time to time. In consideration of the bank giving the said guarantee dated 3/02/1984, theplaintiff alongwith the said M/s. Indo Travels Services Private Limited and onelamba Foreign Travels Private Limited executed a counter guarantee dated 3/02/1984 whereby the plaintiff undertook and agreed to pay on demand tothe State Bank of India any amount which the bank may be called upon to pay underthe said guarantee dated 3rd February, 1984. It is further stated that the plaintiffdeposited its three term deposit receipts with defendant No. 1 on 8/06/1984 and 9/06/1984 each in the sum of Rs. 2,00,000. 00 and the said deposits were to matureon 8/12/1984 and 9/12/1984. IATA by a letter dated 4/09/1984 invoked the bank guarantee executed by the defendant-Bank anddemanded payment of Rs. 16,59,000. 00. It is further stated that the plaintiffdeposited its three term deposit receipts with defendant No. 1 on 8/06/1984 and 9/06/1984 each in the sum of Rs. 2,00,000. 00 and the said deposits were to matureon 8/12/1984 and 9/12/1984. IATA by a letter dated 4/09/1984 invoked the bank guarantee executed by the defendant-Bank anddemanded payment of Rs. 16,59,000. 00. On such demand having been made, thedefendant duly made payment of the aforesaid amount of Rs. 16,59,000. 00to IATAon 30/11/1984 and called upon the plaintiff as well as M/s. Indo Travelservices Private Limited to pay the said amount. On the failure of the plaintiff and/or either guarantors to pay the said amount or any part thereof, the bank filed Suitno. 441/84 in this Court for recovery of the aforesaid amount and it was statedtherein that the bank had already adjusted the amount of the fixed deposit receiptsas well as five other term deposit receipts of the plaintiff as well as one term depositreceipt of M/s. Indo Travel Services Private Limited against the amount which wasdue to the bank from these persons. In the alternative it was prayed in the said suitthat a joint and several decree be passed against the present plaintiff and M/s. Indotravel Services Private Limited and the other guarantor for the sum of Rs. 15,25,359. 70 paise. ( 2 ) THE present application was filed by the defendant on 3/03/1992 foramendment of paragraph 4 of the written statement. Originally in paragraph 4 ofthe written statement, the defendant had stated that the defendant as banker of theplaintiff had general lien on the term deposit receipts and it was entitled to retainthe proceeds of the said term deposit receipts or securities as goods bailed to it assecurity for payment due from the plaintiff to the State Bank of India and/or as asecurity for a general balance of account. It is also stated that the bank had alreadyfiled a suit against the plaintiff and other guarantors for the balance amount afteradjustment of the amount of the aforesaid term deposit receipts. By the proposedamendment, the defendant wants to add the following paragraph after the existingparagraph 4 of the plaint. It is also stated that the bank had alreadyfiled a suit against the plaintiff and other guarantors for the balance amount afteradjustment of the amount of the aforesaid term deposit receipts. By the proposedamendment, the defendant wants to add the following paragraph after the existingparagraph 4 of the plaint. "the State Bank of India was entitled to claim such lien and /or right of set offand/or adjustment against all the said terms deposited receipts and wasentitled to retain and /or adjust and /or set off the proceeds of all the said termdeposits REFERRED TO to above or the said securities or goods bailed as security forpayment of all monies due from the plaintiff to the State Bank of India on thegenral balance of account of the plaintiff with the State Bank of India. The Statebank of India has already duly set off and/or adjusted or retained the saidsum of Rs. 16,59,000. 00 due from the plaintiff to the State Bank of India alongwith interest thereon under in terms of the said counter guarantee against thesums payable to the plaintiff under the said term deposit. " ( 3 ) OBJECTION of the plaintiff to the proposed amendment is that the defendantcannot take the plea of set off as the plea of adjustment and set off are selfcontradictory and cannot be allowed to be taken by way of amendment andsecondly, the amendment is not only malafide but is also vague. It is also the caseof the plaintiff that the plea of set off is barred by limitation and cannot be allowedto be taken by way of the proposed amendment. The plaintiff has relied upon a Fullbench Judgment of the Travancore Cochin High Court in Government of the Unitedstate of Travancore and Cochin v. Bank of Cochin Limited, reported as AIR 1954tc 243 in support of the plea that the plea of adjustment and set off beingcontradictory cannot be allowed to be taken by way of amendment. The plaintiff has relied upon a Fullbench Judgment of the Travancore Cochin High Court in Government of the Unitedstate of Travancore and Cochin v. Bank of Cochin Limited, reported as AIR 1954tc 243 in support of the plea that the plea of adjustment and set off beingcontradictory cannot be allowed to be taken by way of amendment. Judgmentreported as Khushi Ram v. Ram Chand, AIR 1972 Punjab and Haryana 303 has alsobeen relied upon by the plaintiff to support his plea that if the defendant has not putin his claim of set off on the first hearing in the written statement, he must make outa very strong case for condonation of delay and satisfy that there was very validground for not doing so and while deciding an application under Order 6 Rule 17cpc, the Court should take into consideration the provisions of Order 8 Rule 6 ( 4 ) IN Government of United States of Travencore Cochin v. Bank of Cochinlimited (Supra), the Court had in execution of a decree that had been passed infavour of the bank of Cochin, issued an order of attachment attaching a sum of Rs. 36,260. 00 allegedly belonging to the judgment debtor and available with the Excisecommissioner. When a notice was issued to the Excise Commissioner directinghim to send the aforesaid amount, attached earlier, to the Court, the Excisecommissioner filed objections contending that no amount was available with thestate, as the amount deposited by the judgment debtor had been adjusted againstthe amount that was due from him to the State. On these contentions of thegarnishee (State), the decree holder maintained that claim of the State against thejudgment debtor was only an outstanding claim even on the date of attachment andthe State must satisfy its claim by way of a set off in appropriate legal proceedings. The argument was that a set off could be effective only in the manner contemplatedby Rule 6 of Order 8 Civil Procedure Code and as such the Statecould not adjust the said amountagainst its outstanding dues. It was in these circumstances that the Court held thatthere was nothing in Rule 6 of Order 8 to indicate that there could be no set offindependent of the conditions laid down and the procedure prescribed by thatrule. It was in these circumstances that the Court held thatthere was nothing in Rule 6 of Order 8 to indicate that there could be no set offindependent of the conditions laid down and the procedure prescribed by thatrule. The said Rule was not intended to cover all categories of set off and theprovisions of the rule would apply where the set off is admissible under Rule 6 oforder 8 or otherwise. It was held that there can be no doubt that a plea of set off canbe entertained and given effect even independent of Order 8 Rule 6. It was furtherheld that any question of set off could arise only in respect of dues which wereoutstanding and which had not already been adjusted. A plea of satisfaction oradjustment was essentially different from a plea or claim of set off. ( 5 ) I fail to understand as to how this judgment can be of any help to theplaintiff. It was a case where the garnisgee had taken a plea of adjustment and thedecree holder was saying that the gamishee can claim only a set off and this set offcan be only in terms of the provisions of Order 8 Rule 6 and the Court held thatwhen the amount has already been adjusted by the gamishee, there was noquestion of any set off. The said judgment is, in my opinion, not applicable to thefacts of the present case. ( 6 ) IN Khushi Ram v. Ram Chand reported as AIR 1972 Punjab and Haryana303, the Court had held that in case the defendant had not put in his claim of set offon the first hearing in the written statement, he must make out a very strong casefor condonation of delay and satisfy the Court that there was very valid ground fornot doing so earlier and even under Order 6 Rule 17 CPC, the delay must beexplained by the defendant. In my opinion, the said judgment will not be of anyhelp to the plaintiff because in the present case the plea of adjustment has alreadybeen taken in the written statement and in the alternative the plea of set off is nowsought to be taken. In my opinion, the said judgment will not be of anyhelp to the plaintiff because in the present case the plea of adjustment has alreadybeen taken in the written statement and in the alternative the plea of set off is nowsought to be taken. In the Punjab case, the application was made at the time of finalarguments of the case and it was in these circumstances that the Court held that thedefendant must explain the delay satisfactorily so as to make out a case for allowingthe application for amendment. I, therefore, do not feel that there is any unexplained delay in filing the present application. ( 7 ) THE contention of Mr. Singia that plea of set off is barred by limitation isalso, in my opinion, not sustainable. Under Section 3 of the Limitation Act, anyclaim by way of a set off or a counter claim shall be treated as a separate suit andshall be deemed to have been instituted, (1) in case of a set off, on the same date asthe suit in which the set off is pleaded, and (2) in case of a counter claim, on the dateon which the counter claim was made in Court. Present is not a case of counterclaim. All that the defendant wants now to set up in the written statement is thatbank had a lien on the amount lying with it and had, accordingly, right of set offand/or adjustment. The right of set off is a right in defence whereas the pica ofcounter claim is a weapon of offence. Where a plea of set off is pleaded the plaintiffin order to establish his plea of limitation must prove that set off was barred whenthe plaintiff commenced his action. In my opinion, there is no question of the pleabeing barred by limitation. ( 8 ) THE last contention of the plaintiff is that the amendment sought by thedefendant is only malafide inasmuch as the plaintiff was only a guarantor and assuch his fixed deposit receipts could not have been encashed and there could nothave been any lien thereon and according to him it was for this reason that in Issueno. l the plaintiff has been described only as a principal debtor and not as aguarantor. In my opinion, at the stage of deciding application for amendment, thiscourt cannot go into this question. These are the questions to be decided on mertis. l the plaintiff has been described only as a principal debtor and not as aguarantor. In my opinion, at the stage of deciding application for amendment, thiscourt cannot go into this question. These are the questions to be decided on mertis. ( 9 ) THOUGH the application is not very happily worded, however, the intentionof the defendant is very clear. What the defendant wants to add in the writtenstatement by way of proposed amendment is that the defendant was entitled to theadjustment of the proceeds of the fixed deposit receipts against the amount whichhad been paid by the bank under the bank guarantee issued by it to IATA and in thealternative, in case, it is held that the defendant was not entitled to adjustment, thedefendant is still entitled to set off the amount of the proceeds of the fixed depositreceipts on which the bank has a lien under Section 171 of the Contract Act. The pleaof set off is only an alternative plea to the adjustment. There cannot be any otherinterpretation of the words "and/or" mentioned in the proposed amendment. Thewords "and/or" mean that the plea taken by the defendants in the written statementis either adjustment or set off. The only meaning, therefore, which can be given tothe words "and/or" is that one of the two pleas is an alternative plea. ( 10 ) IN Pirgonda Hongonda Patil v. Kalgonda Shidgonda Patil and Ors. reported as AIR 1957 SC 357 where at the appellate stage the plaintiff had appliedfor amendment of the plaint by raising, in the alternative, a claim for damages forbreach of contract, it was held as under:- "they contend that the amendment introduces a new cause of action, that asuit on that cause of action would now be barred by limitation, that theplaintiffs had ample opportunity to amend their plaint but that they failed todo so, and that owing to lapse of time the defendants would be seriouslyprejudiced if this new claim were allowed to be raised. There is considerableforce in the objections. But affter giving due weight to them, we are of opinionthat this is a fit case in which the amendment ought to be allowed. Theplaintiffs do not claim any damages for wrongful termination of the agreement, Ex. A, by the notice dated 13. 6. 1945. There is considerableforce in the objections. But affter giving due weight to them, we are of opinionthat this is a fit case in which the amendment ought to be allowed. Theplaintiffs do not claim any damages for wrongful termination of the agreement, Ex. A, by the notice dated 13. 6. 1945. What they claim is only damagesfor non-delivery of goods in respect of orders placed by them and acceptedby the defendants prior to the termination of the agreement by that notice. Clause 14 of the agreement expressly reserves that right to the plaintiffs. Thesuit being founded on Ex. A, a claim based on Clause 14 thereof cannot be saidto be foreign to the scope of the suit. Schedule E to the plaint mentions theseveral indents in respect of which the defendants had committed default byrefusing to deliver the goods, and the damages claimed are also statedtherein. The plaintiffs seek by their amendment only to claim damages inrespect of those consignments. The prayer in the plaint is itself general andmerely claims damages. Thus, all the allegations which are necessary forsustaininga claim for damages for breach of contract are already in the plaint. What is lacking is only the allegation that the plaintiffs are, in the alternative,entitled to claim damages for breach of contract by the defendants in notdelivering the goods. It is no doubt true that Courts would, as a rule, decline to allow amendments,if a fresh suit on the amended claim would be barred by limitation on the dateof the application. But that is a factor to be taken into account in exercise of thediscretion as to whether amendment should be ordered, and does not affectthe power of the Court toorder it, if that is required in the interests of justice. In Charon Das v. Amir Khan, 47 Ind App 255, AIR 192t PC 50 (A) the Privycouncil observed:that there was full power to make the amendment cannot be disputed, andthough such a power should not as a rule be exercised where the effect is totake away from a defendant a legal right which has accrued to him by lapseof time, yet there are cases where such considerations are out-weighed by thespecial circumstances of the case. Vide also Kisan Das v. Rachappa, ILR 33bombay 644 (B ). Vide also Kisan Das v. Rachappa, ILR 33bombay 644 (B ). In the present case, apart from the contents of the plaint already set out, thereis the fact that the defendants cancelled the contract without strictly complying with the terms of Clause 14. The ground on which they repudiated thecontract was that the second plaintiff had assigned his interests to the firstplaintiff; but the record shows that subsequent to the assignment the defendants had business transactions with both the plaintiffs and therefore theground for cancellation appears to have been a mere device to which they hadplaced. We are of opinion that the justice of the case requires that theamendment should be granted. The plaintiffs will accordingly be allowed toamend the plaint as follows:-In the alternative and without prejudice to the claim on the footing ofconversion, the plaintiffs say that by reason of the facts aforesaid, theplaintiffs say that byreason of the facts aforesaid, there was a contractbetween the parties whereby the defendants undertook to supply and deliverto the plaintifffs (or either of them) the goods ordered out by Government ontheir (the plaintiffs) account and included in the quotas PL. 1004-PL. 1007. Thesaid goods arrived in Bombay, but the defendants failed and neglected todeliver the same though demanded and in fact repudiated their obligation todeliver. The plaintiffs say that they were always ready and willing to pay forand take delivery of the same. The defendants at all material times well knew that the plaintiffs hadpurchased the same for resale and for fulfilment of contracts of sale andsupply. The plaintiffs claim damages as we particulars. This appeal must accordingly be allowed, the decree under appeal set aside,and the suit remanded for rehearing to the trial Court. The amended claimand the suit will be tried and disposed of in accordance with law. " ( 11 ) SIMILARLY in Pirgonda Hongonda Patil v. Kalgonda Shidgonda Patil andors. reported as AIR 1957 SC 363 it was held that - "all amendments ought to be allowed which satisfy the two conditions, (a)not working injustice to the other side, and (b) of being necessary for thepurpose of determining the real questions in controversy between the parties. Amendments should be refused only where the other party cannot be placedin the same position as if the pleading had been originally correct, but theamendment would cause him an injury which could not be compensated incosts. Amendments should be refused only where the other party cannot be placedin the same position as if the pleading had been originally correct, but theamendment would cause him an injury which could not be compensated incosts. It is merely a particular case of this general rule that where a plaintiffseeks to amend by setting up a fresh claim in respect of a cause of action whichsince the institution of the suit had become barred by limitation, the amendment must be refused; to allow it would be to cause the defendant aninjurywhich could not be compensated in costs by depriving hi m of a good defenceto the claim. The ultimate test therefore still remains the same; can theamendment be allowed without injustice to other side, or can it not?" ( 12 ) IN my opinion, the amendment sought by the defendant is material andnecessary for deciding the matter in controversy between the parties. The bank hada lien under Section 171 upon the proceeds of the fixed deposit receipts which werelying in deposit with the bank and in case bank had such a lien under Section 171,in my opinion, the defendant can show to the Court that the amount which was dueto the plaintiff under the aforesaid fixed deposit receipt was liable to be adjustedand /or set off against the amount which the plaintiff owed to the bank. There is nodoubt a delay in filing the application, however, the law on amendment is veryclear. The amendment can be allowed at any stage of the proceedings and theultimate test is that can such amendment be allowed without injustice to the otherside. Injustice means that a right which has already accrued to the other party,should not be taken away by the proposed amendment. ( 13 ) THE object of the Courts is to decide the rights of the parties and not topunish them for mistakes they make in the conduct of their cases. An error ormistake, in case it is not fraudulent or is not intended to overreach the Court, shouldnot be refused to be corrected, in case the same can be done without causinginjustice to the other party. An error ormistake, in case it is not fraudulent or is not intended to overreach the Court, shouldnot be refused to be corrected, in case the same can be done without causinginjustice to the other party. ( 14 ) IN my opinion, no right had accrued to the plaintiff which will be takenaway by the proposed amendment and the plaintiff can well be compensated withcosts for the delay which has been caused in the disposal of the suit on account ofthe defendant having made the application for amendment at the later stage. Meredelay in applying for an amendment cannot be a ground for refusing the application for leave to amend. ( 15 ) I, therefore, in view of the above discussions, allow the defendant toamend the written statement, as proposed in the application for amendment,subject to payment of Rs. 2,000. 00 as cost. Application is, accordingly, disposed of.