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2007 DIGILAW 137 (UTT)

KICHHA SUGAR COMPANY LIMITED v. ORIENTAL GASES

2007-03-26

RAJESH TANDON

body2007
JUDGMENT Hon’ble Rajesh Tandon, J. Heard Sri Tanveer Alam Khan, counsel for the revisionist and Sri Sudhir Kumar, counsel for the respondents. 2. By the present revision filed under Section 115 of the Civil Procedure Court, the revisionist has prayed for setting aside the order dated 17.12.2002 passed by the Civil Judge, Sr. Division, Udham Singh Nagar in Civil Suit No. 46 of 2000 on the application filed by the defendant bearing No. 46 Ka by which the amendment in the form of Counter Claim has been allowed. 3. Briefly stated, the suit was filed by the plaintiff- revisionist for a recovery of Rs.3,30,453.36 on the ground that the plaintiff company is a registered under the provisions of Companies Act and is carrying on the business of producing allied products at its unit situate at P.O. Kichha, District – Udham Singh Nagar. 4. According to the case of the plaintiff, the defendant was offered to supply of the gas cylinder to the plaintiff. On 01.08.1997, the defendant issued a letter in response to offer to supply Oxygen Gas Cylinders having 1800 to 2000 L.B.S. pressure at the rate of Rs. 19.50 per cubic mtr. and dissolved Acetylene Gas Cylinders having capacity of 1.5 kg. Pressure equal to 1 cubic meter at the rate of Rs.138.00 per cubic mtr. In the trems and conditions of the purchase order it was clearly mentioned by the plaintiff that the pressure of Cylinders of Oxygen should be 1800 to 2000 L.B.S. and in case under the circumstances the Cylinders have less than specified pressure are accepted, proportionate deductions regarding downfall of the pressure shall be made from the bill of the defendant. 5. The plaintiff has submitted that till 20.09.1997 the defendant supplied 134 Cylinders of D.A. Gas and 195 Cylinders of Oxygen Cylinders (Approximately), while the consumption rate should be 2.5 to 3 Oxygen Cylinder per D.A. Cylinder. This consumption was itself showing that the Cylinders having dissolved Acetylene Gas was having the Gas below to standard ratio. 6. The plaintiff informed the defendant on 22.09.1997, that the Gas Cylinders having gas below the standard ratio but the defendant did not pay any heed to the request of the plaintiff and continued to supply the gas cylinders below the standard ratio and such the plaintiff has suffered a loss of Rs. 2,48,461,34 excessively on the bills raised by the defendant. 2,48,461,34 excessively on the bills raised by the defendant. Thereafter, the plaintiff issued letter dated 1st July, 1997 to the defendant requesting him to arrange lifting of empty gas cylinders after getting no dues certificate from the account department of the plaintiff, but the defendant did not pay any attention to the request of the plaintiff and threatened the plaintiff by way of notice dated 20.07.1998, which was responded promptly on 13.11.1998. The plaintiff again issued a notice dated 06.09.1999 through his Advocate and after receipt of that notice, the defendant has not paid even a single penny to the plaintiff. 7. According to the plaintiff the cause of action arose on 1st August, 1997 when the order for supply was issued to the defendant and subsequently on 22nd September, 1997, when it was brought to the notice of the defendant that he was supplying a lesser quantity of gas and on 1st July, 1998, the payment was required to be paid by the plaintiff and on 15.09.1999 when the notice was sent to the defendant by a registered post. 8. A written statement was filed by the defendants, where it has been stated that the allegations regarding cylinders having lesser quantity of gas has been denied. The additional pleas were also taken, where in paragraph 14, it has been mentioned that the terms and conditions contained in the purchase order dated 01-08-1997 nowhere provided that one D.A. Gas Cylinder should be consumed with two and half to three Oxygen Gas Cylinders. In paragraph 19 of the additional pleas, it has been stated that the plaintiff was under obligation to return the empty gas cylinders. Paragraphs 19 and 20 of the additional pleas are quoted below: “19. That the plaintiff was under obligation to return empty Cylinders within seven days from the date of delivery and thereafter in terms of the conditions printed in the bill of the defendant, the plaintiff was liable to pay Rs. 0.75 p per day per cylinder upto seven days after expiry of free period of seven days and thereafter at the rate of Rs. 1.50p per day till return of the cylinder. 20. 0.75 p per day per cylinder upto seven days after expiry of free period of seven days and thereafter at the rate of Rs. 1.50p per day till return of the cylinder. 20. That in total 147 cylinders were unlawfully retained by the plaintiff with malafide intention and the plaintiff failed to return these cylinders inspite of service of notice dated 20-07-1998 and as such the plaintiff rendered itself liable to pay rent on these unreturned cylinders. The letter dated 01-07-1998 sent by the plaintiff for lifting empty cylinder was conditional in as much as the lifting of empty cylinders was made subject to clearance from accounts department. On visit of the proprietor of the defendant, the Accounts Department of the plaintiff refused to issue no dues certificate and as such the defendant was not allowed to lift the empty cylinders due to this condition illegally imposed by the plaintiff. There was no scope for permitting lifting of empty cylinders subject to clearance from Accounts Department in as much as a sum of Rs. 2,07,000/- was payable by the plaintiff to the defendant.” 9. The written statement was filed on 7th December, 2000. During the pendency of the case, an application was filed on 3rd March, 2002 for amendment in the written statement under Order 6 Rule 17 of the code of Civil Procedure stating therein that paragraphs 26,27,28,29,30 and 31 may be permitted to add as a counter claim. 10. Counsel for the applicant has referred the judgment of Ajendraprasadji N. Pande & Another Vs. Swami Keshavprakashdasji N. Ors. 2007 AIR SCW Page 513, where it has been observed as under: “54. It is submitted that the date of settlement of issue is the date of commencement of trial. [Kailash v. Nankhu & Ors. (supra)] Either treating the date of settlement of issues as date of commencement of trial or treating the filing of affidavit which is treated as examination in chief as date of commencement of trial, the matter will fall under provision to Order 6, Rule 17, CPC. The defendant has, therefore, to prove that in spite of due diligence, he could not have raised the matter before the commencement of trial. We have already referred to the dates and events very elaborately mentioned in the counter affidavit which proves lack of due diligence on the part of the defendant Nos. 1 and 2 (appellants).” 11. The defendant has, therefore, to prove that in spite of due diligence, he could not have raised the matter before the commencement of trial. We have already referred to the dates and events very elaborately mentioned in the counter affidavit which proves lack of due diligence on the part of the defendant Nos. 1 and 2 (appellants).” 11. Order 8 Rule 6-A of the Code of Civil Procedure provides as under: “[6-A. Counter claim by defendant- (1) A defendant in a suit may, in addition to his right of pleading a set-off under Rule 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 counter-claim. (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 he rules applicable to plaints. 12. As will appear from the aforesaid definition of Order 8 Rule 6-A that Sri Tanveer Alam Khan has emphasized on word before the defendant has delivered his defence or before the time limited for delivering his defence and there is no right to the defendant to file the counter claim by the way of Order 6 Rule 17 of the Code of Civil Procedure. 13. In Mahendra Kumar and another vs. state of Madhya Pradesh and others (1987) 3 SCC 265, the Apex Court has observed as under: “15. The next point that remains to be considered is whether Rule 6-A (1) of Order VIII of the code of Civil Procedure bars the filing of a counter-claim after the filing of a written statement. 13. In Mahendra Kumar and another vs. state of Madhya Pradesh and others (1987) 3 SCC 265, the Apex Court has observed as under: “15. The next point that remains to be considered is whether Rule 6-A (1) of Order VIII of the code of Civil Procedure bars the filing of a counter-claim after the filing of a written statement. This point need no detain us long, for Rule 6-A (1) does not, on the face of it, bar the filing of acounter claim by the defendant after he had filed the written statement. What is laid down under Rule 6-A (1) is that a counter-claim can be filed, provided the cause of action had accrued to the defendant 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. The High court, in our opinion, has misread and misunderstood the provision of Rule 6-A (1) in holding that as the appellants had filed the counter-claim after the filing of the written statement, the counter-claim was not maintainable. The finding of the High Court does not get any support from Rule 6-A (1) of the Code of Civil Procedure. As the cause of action for the counter-claim had arisen before the filing of the written statement, the counter-claim was, therefore, quite maintainable. Under Article 113 of the Limitation act, 1963, the period of limitation of three years from the date the right to sue accrues, has been provided for any suit for which no period of limitation is provided elsewhere in the schedule. It is not disputed that a counter-claim, which is treated as a suit under Section 3 (2) (b) of the Limitation Act has been filed by the appellants within three years form the date of accrual to them of the right to sue. The learned District Judge and the High Court were wrong is dismissing the counter claim.” 14. In Smt. Shanti Rani Das Dewanjee Vs. Dinesh Chandra Day (Dead) by LRs. 1998(89) RD 344, the Apex Court has observed as under: “In our view, the impugned decision does not warrant interference. Such question was specifically raised before this court in Madhya Kumar and others v. State of Madhya Pradesh and others JT 1987 (2) SC 524. In Smt. Shanti Rani Das Dewanjee Vs. Dinesh Chandra Day (Dead) by LRs. 1998(89) RD 344, the Apex Court has observed as under: “In our view, the impugned decision does not warrant interference. Such question was specifically raised before this court in Madhya Kumar and others v. State of Madhya Pradesh and others JT 1987 (2) SC 524. It has been held by this Court that right to file a counter claim under Order VIII Rule 6-A of the code of Civil Procedure is referable to the date of accrual of the cause of action. If the cause of action had arisen before or after the filing of the suit, and such cause of action continued up to the date of filing written statement or extended date of filing written statement, such counter claim can be filed even after filing the written statement. The said Civil Case No. 248/82, in which the application under Order VIII Rule 6-A has been filed by the defendant respondent was instituted on 15.7.82. and the application under Order VIII Rule 6-A was presented on 22.6.85. It cannot be held that the cause of action for the suit or counter claim was ex-facie barred by limitation under the Limitation Act. It has been sought to be contended by the learned counsel for the appellant that in the instant case, the cause of action had arisen long before the institution of the said Civil Case No.248/2 and, therefore, the suit and counter claim were barred under the Limitation Act. Such question was not raised before the court below and therefore, not necessary for this court to decide the same because the question of limitation regarding the suit if raised will be decided after ascertaining the date of accrual of the cause of action on the basis of relevant materials to be placed on record. We are therefore, not expressing any opinion on the said contention sought to be raised by the learned counsel for the appellant, for the first time before this court. As the application under Order VIII Rule 6-A is not ex-facie barred the impugned order cannot be held to be incorrect on the grounds urged before the Court below. We therefore find no reason to interfere with the impugned order. This appeal, therefore, fails and is dismissed without any order as to costs.” 15. As the application under Order VIII Rule 6-A is not ex-facie barred the impugned order cannot be held to be incorrect on the grounds urged before the Court below. We therefore find no reason to interfere with the impugned order. This appeal, therefore, fails and is dismissed without any order as to costs.” 15. In view of the aforesaid decisions of the Apex Court, it cannot be said that the Counter-claim was barred by limitation. Since the defendant also pleaded in the written statement regarding his claims and the relief which is sought by him is still available. By way of amendment, he has sought to add the relief by way of the counter claim, which he has already pleaded in the aforesaid written statement. 16. Further in view of the observations made above, it cannot be said that cause of action for the counter claim was ex-facie barred by time as the relief sought by way of amendment continued up to the date of filling of the written statement. 17. Further in the present case amendment will not change the cause of action. The Apex Court has from time to time observed that the court should be liberal in allowing the amendments. 18. In Rajesh Kumar Aggarwal and others Vs. K.K. Modi and others [2006] SCCR 461, the Apex Court has observed as under : “15. This rule declares that the Court may, at any stage of proceedings, allow either party to alter or amend his pleadings in such a manner and on such terms as may be just. It also states that such amendments should be necessary for the purpose of determining the real question in controversy between the parties. The proviso enacts that no application for amendment should be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter for which amendment is sought before the commencement of the trial. 16. The object of the rule is that Courts should try the merits of the case that come before them and should, consequently, allow all amendements that may be necessary for determining the real question in controversy between the parties provided it does not cause injustice or prejudice to the other side. 17. 16. The object of the rule is that Courts should try the merits of the case that come before them and should, consequently, allow all amendements that may be necessary for determining the real question in controversy between the parties provided it does not cause injustice or prejudice to the other side. 17. Order VI, Rule 17 consist of two parts whereas the first part is discretionary (may) and leaves it to the Court to order amendment of pleading. The second part is imperative (shall) and enjoins the Court to allow all amendments which are necessary for the purpose of determining the real question in controversy between the parties. 18. In our view, since the cause of action arose during the pendency of the suit, proposed amendment ought to have been granted because the basic structure of the suit has not changed and that there was merely change in the nature of relief claimed. We fail to understand if it is permissible for the appellants to file an independent suit, why the same relief which could be prayed for in the new suit cannot be permitted to be incorporated in the pending suit. 19. As discussed above, the real controversy test is the basic or cardinal test and it is the primary duty of the Court to decide whether such an amendment is necessary to not, the amendment will be refused. On the contrary, the learned Judges of the High Court without deciding whether such an amendment is necessary has expressed certain opinion and entered into a discussion on merits of the amendment. In cases like this, the Court should not take notice of subsequent events in order to shorten the litigation, to preserve and safeguard rights of both parties and to sub-serve the ends of justice. It is settled by catena of decisions of this Court that the rule of amendment is essentially a rule of justice, equity and good conscience and the power of amendment should be exercised in the larger interest of doing full and complete justice to the parties before the Court. 20. While considering whether an application for amendment should or should not be allowed, the Court should not got into the correctness or falsity of the case in the amendment. 20. While considering whether an application for amendment should or should not be allowed, the Court should not got into the correctness or falsity of the case in the amendment. Likewise, it should not record a finding in the merits of the amendment and the merits of the amendment sought to be incorporated by way of amendment are not to be adjudged at the stage of allowing the prayer for amendment. This cardinal principle has not been followed by the High Court in the instant case.” 19. In M.S. Grewal Vs. Deep Chand Sood (2001) 8 SCC 151 it has been held as under :- “Law Courts will lose their efficacy if they cannot possibly respond to the need of the society – technicalities there might be many but the justice-oriented approach ought not to be thwarted on the basis of such technicality since technicality cannot and ought not to outweigh the course of justice.” 20. In view of the above, the order passed by the court below requires no interference. The revision lacks merit and deserves to be dismissed. 21. Revision is dismissed. No order as to costs.