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2001 DIGILAW 91 (KER)

Sabhari Syndicate v. Catholic Syrian Bank Ltd. ,

2001-02-07

K.A.MOHAMMED SHAFI

body2001
Judgment :- K.A. Mohamed Shafi. J. This CRP is filed by the defendant in O.S. No. 371/1985 on the file of the Addl. Sub Court, Ernakulam challenging the order in LA. No. 6249/93 dt. 30.11.1993. That petition was filed by the defendant to amend the written statement by incorporating a counter claim against the plaintiff. That order is dismissed by the lower court holding that the application for amendment of the written statement is highly belated and the counter claim sought to be incorporated in the written statement is barred by limitation. 2. Petitioner has contended that in the above suit filed by the respondent claiming huge amount the petitioner made vague counter claim in their written statement and in order to make the counter claim specific and clear they filed the above LA. to amend the written statement. But the learned Sub Judge without properly considering the pleadings and the contentions raised by the defendant dismissed the application stating that the application is highly belated and the counter claim sought to be incorporated is barred by time. 3. Respondent/ plaintiff has contended that absolutely no semblance of counter claim is made by the defendant in the written statement filed by them in the year 1986 and even in the additional written statement filed by them on 2.8.90. According to the respondent the above petition seeking to amend the written statement making counter claim is filed by the defendant with the only malafide intention to protract the trial of the case further. In para 10 of the written statement filed by the defendant in the suit, it is averred that the respondent bank has failed to take timely action inspite of specific instructions from the petitioner which resulted in heavy loss and injury to the defendant. In para 15 of the written statement it is stated that the loss incurred by the defendants has to be made good by the plaintiff bank and the amount of loss is to be set off against the amount payable by the defendant to the plaintiff bank. In para 15 of the written statement it is stated that the loss incurred by the defendants has to be made good by the plaintiff bank and the amount of loss is to be set off against the amount payable by the defendant to the plaintiff bank. In para 21 of the written statement it is averred that without prejudice to the contention of the defendant it is submitted that some times it may be liable to pay some amount to the plaintiff but the amount has to be determined only after the setting off the amount payable by the respondent bank and deducting the unauthorized enhanced interest levied and collected by the plaintiff bank. Though there are several allegations in the written statement that the plaintiff bank is liable to pay the amount to the defendant as per transactions involved in the suit no specific allegation or mention of counter claim is made in the written statement. 4. Petitioner has contended that when he approached Consumer Dispute Redressal Commission seeking recovery of the amount from the plaintiff bank, the plaintiff contended before the forum that the claim made by the defendants before the forum is sub judice in the above suit and therefore those claims cannot be entertained by the Consumer Dispute Redressal Forum and that contention is accepted by the National Consumer Dispute Redressal Commission, New Delhi and refused to entertain the claim made by the defendant without expressing any opinion on the maintainability of the claim with reference to limitation and other allegations made in that case. Therefore the petitioner vehemently contended that since the respondent bank has admitted that the claim made by the petitioner against the respondent is sub judice in the above suit before the Consumer Dispute Redressal Forum they cannot contend that the petitioner is not entitled to amend the plaint specifically incorporated the counter claim in the written statement filed by the defendant especially after getting the claim made by the defendant before the forum rejected on the contention that the matter is sub judice before the civil court in this suit. 5. 5. The main contention raised by the respondent is that the petitioner did not make any counter claim in the original written statement or additional written statement and therefore the amendment sought for is to incorporate a claim which is barred by limitation and if the written statement is amended as claimed by the defendant it will change the nature of the contentions raised by the petitioner by giving a new cause of action which cannot be allowed. 6. The above petition is filed by the petitioner to incorporate the amendment under O. VIII R.6-A of the CPC which reads as follows: 6A. Counter claim by defendant. (1) A defendant in a suit may, in addition to his right of pleading a set off under R.6, set up, by way of counter claim against the claim of the plaintiff, any right or claim in respect of a cause of action accruing to the defendant against the plaintiff either before or after the filing of the suit but before the defendant has delivered his defence or before the time limited for delivering his defence has expired, whether such counter-claim is in the nature of a claim for damages or not; Provided that such counter claim shall not exceed the pecuniary limits of the jurisdiction of the court. (2) Such counter claim shall have the same effect as a cross suit so as to enable the court to pronounce a final judgment in the same suit, both on the original claim and on the counterclaim. (3) The plaintiff shall be at liberty to file a written statement in answer to the counter claim of the defendant within such period as may be fixed by the court. (4) The counter claim shall be treated as a plaint and governed by the rules applicable to plaints. 7. Counsel for respondent submitted that the petitioner has not raised its counter claim before the defendant delivered their defence or before the time limit for delivering their defence had expired in this case since they did not make any counter claim in the original written statement filed in the year 1986 and the additional written statement filed in the year 1990. Therefore the "counter claim put forward by the petitioner cannot be entertained. In support of his contention counsel for respondent relies upon the decision reported in Bank of Baroda v. Sh. Therefore the "counter claim put forward by the petitioner cannot be entertained. In support of his contention counsel for respondent relies upon the decision reported in Bank of Baroda v. Sh. Gurcharan Singh (AIR 1986 Punjab and Haryana 252) wherein a Single Judge of Punjab and Haryana High Court has held that under O. VIII R.6A and 6B of the CPC the defendant can file counter claim before he filed the written statement and cannot be allowed to do so subsequently by admitting the written statement. 8. But the above contention raised by the petitioner based on the above judgment of the Single Judge of Punjab and Haryana High Court cannot be accepted since the ruling of the single judge runs counter to the judgment of the Supreme Court reported in Mahendra Kumar v. State of MP (1987 (2) KLT SN. Case .No. 10 P. 9). In that judgment the Supreme Court has clearly held that the counter claim made by the defendant after filing the written statement cannot be said to be not maintainable as the cause of action for the counter claim had arisen before filing of the written statement. Therefore the contention that the counter claim raised by the petitioner after filing the written statement is not sustainable in this case cannot be accepted. 9. The next contention raised by the. respondent is that the counter claim attempted to be made by the petitioner is barred by limitation and therefore it cannot be allowed. As already noted the petitioner has contended that in the written statement originally filed by them there is factual foundation with regard to the counter claim and since the claim made in the written statement is vague and not specific they sought to amend the written statement by making the claim specific. They have also contended that as they felt that they can make the claim before the Consumer Dispute Redressal Forum and redress their grievance the written statement was not originally amended and in view of the specific contention raised by the respondent before the Consumer Dispute Redressal Forum that the claim made by the petitioner therein is sub judice they have filed the petition to amend the written statement after their claim was disposed of by the National Consumer Dispute Redressal Commission. Therefore, according to the petitioner, in the interests of justice the amendment of the written statement should be allowed even if it is found that the counter claim made by them is barred by time on the date when the application was moved to amend the written statement. It is not disputed that the general rule is that the courts will decline to allow the amendment of the pleading when fresh suit on the amended claim will be barred by limitation on the date of application seeking amendment of the pleadings. But it is well settled that where the amendment does not constitute a new or additional cause of action or raises any new case but only elaborates or elucidates the facts already on record the amendment can be allowed under O. VIIIR. 6A even after the expiry of the statutory period of limitation. 10. In the decision reported in Char an Das and others v. Amir Khan & Ors. (AIR 1921 Privy Council 50) the Privy Council has observed as follows: "That there was full power to make the amendment cannot be disputed, and though such a power should not as a rule be exercised where its effect is to take away from a defendant a legal right which has accrued to him by lapse of time, yet there are cases see for example Mohammed Zahoor Alt Khan v. Mussumut Thakoorance Rutta Koer (1) where such considerations are outweighed by the special circumstances of the case, and their Lordships are not prepared to differ from the Judicial Commissioner in thinking that the present case is one". 11. In the decision reported in L.J. Leach and Co., Ltd. And Ann v. M/s. Jardine Skinner and Co. (AIR 1957 SC 357) the Supreme Court has observed as follows: "It is no doubt true that the Courts would as a rule decline to show the amendment if a fresh suit on the amended plea will be barred by limitation on the date of the application but that is the fact to be taken into account in exercise of the discretion as to whether the amendment should be ordered and does not affect the power of the court to order it." 12. In the decision reported in Vineet Kumar v. Mangal Sain Wadhera (AIR 1985 SC 817) the Supreme Court has observed as follows: "Normally amendment is not allowed if it changes the cause of action. But it is well recognised that where the amendment does not constitute an addition of a new cause of action, or raise a new case, but amounts to no more than adding to the facts already on the record, the amendment would be allowed even after the statutory period of limitation." In the decision reported in Kunheedu v. Marakkar (1989 (1) KLT SN. Case No. 13 P. 77) this court has held as follows: "As a rule, a plaintiff should not normally be allowed to amend the plaint by introducing a new cause of action which would have become barred by limitation. amendments should be refused if the applicant has not acted in good faith. Subject to such limitations, the court has wide discretion to allow amendments if they are necessary for the purpose of determining the real controversy between the parties. If the party has already laid factual foundation in his pleadings for such contention, then the courts should not lightly dismiss the prayer for amendments". 13. In the decision reported in B.K.N. Filial v. P. Pillai (2000 (1) KLT 274 = 2000 (1) KLJ 261 (SC)) the Supreme Court has observed as follows: "All amendments of the pleadings should be allowed which are necessary for determination of the real controversies in the suit provided the proposed amendment does not alter or substitute a new cause of action on the basis of which the original was raised or defence taken. Inconsistent and contradictory allegations in negation to the admitted position of facts or mutually destructive allegations of facts should not be allowed to be incorporated by means of amendment to the pleadings. Proposed amendment should not cause such prejudice to the other side which cannot be compensated by costs. No amendment should be allowed which amounts to or relates in defeating a legal right accruing to the opposite party on account of lapse of time. The delay in filing the petition for amendment of the pleadings should be properly compensated by costs and error or mistake which, if not fraudulent, should not be made a ground for rejecting the application for amendment of plaint or written statement." 14. The delay in filing the petition for amendment of the pleadings should be properly compensated by costs and error or mistake which, if not fraudulent, should not be made a ground for rejecting the application for amendment of plaint or written statement." 14. From the dictum laid down in the above rulings it is clear that the amendment of the written statement cannot be rejected on the ground that the delay or on the mere ground that the claim is barred by limitation on the date of application for amendment of the pleadings. It is clear from the written statement filed by the defendant in this case that there is factual foundation for the counter claim though no counter claim is made specifically in the written statement. It is also clear from the contention taken by the respondent before Consumer Dispute Redressal Forum that the petitioner has put forward his contention regarding the counter claim against the respondent and that claim was not entertained since the respondent contended that the claim is sub judice in the above suit before the lower court. Therefore no question of prejudice being caused to the respondent by allowing amendment of the written statement in this case. 15. It is true that there is delay in filing the petition to amend the written statement making the counter claim. The delay can be condoned by ordering costs to the opposite party. Therefore it is clear that the lower court has committed grave error of law and jurisdiction in disallowing the amendment of the written statement sought for by the petitioner herein. Hence the impugned order passed by the lower court cannot be sustained. Therefore the CRP is allowed. The impugned order passed by the lower court is set aside in the LA. for amendment of the written statement is allowed on payment of costs of Rs. 500/-to the respondent. The petitioner is directed to pay the cost awarded to the respondent within a period of two weeks from this date. In case the cost is paid as directed, the lower court is directed to allow the amendment of the written statement and proceed with the trial of this case in accordance with law and dispose with of the suit very expeditiously, considering the fact that the suit is pending for the last ten years.