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2024 DIGILAW 773 (MP)

Mold Tek Packing Ltd. v. SD Containers

2024-12-11

SUBODH ABHYANKAR

body2024
ORDER : SUBODH ABHYANKAR, J. 1] Heard on the objection raised by the counsel for the defendant as has been noted by this Court on 28.08.2024, which reads as under:- “Shri Prakhar Karpe, counsel for the defendant has submitted that the written statement to the counter-claim is barred by limitation and cannot be allowed and has also relied upon a decision rendered by the Supreme Court in the case of SCG Contracts India Pvt. Ltd. Vs. K. S. Chamankar Infrastructure Pvt. Ltd . and Ors. reported as AIR 2019 SC 2691 . Since the objection has not been taken in writing, thus, counsel for the plaintiff seeks and is granted a week's time to advance arguments. List the matter on 04.09.2024.” 2] On perusal of the record, it is found that the counter-claim in the present case was filed by the defendant on 02.03.2020, whereas counsel for the plaintiff has sought time to file reply to the same. Time to file reply to the counter claim was firstly granted on 30.12.2012, and thereafter, on other occasions also, and lastly on 03.04.2023, directing that one more opportunity to file reply to counter-claim is granted, and the matter was listed on 26.04.2023. In between, on 17.04.2023, the reply to the counter- claim has already been filed by the plaintiff and thereafter, the objection has been raised by the counsel for the defendant on 28.08.2024 as aforesaid. 3] This Court finds that so far as the provisions of counter-claim is concerned, the same are governed by Order VIII Rule 6A and 6G of C.P.C., which read as under:- “ [6A. 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 the rules applicable to plaints.] xxxxxxxxxxxx [6G. Rules relating to written statement to apply. — The rules relating to a written statement by a defendant shall apply to a written statement filed in answer to a counter-claim.]” (Emphasis Supplied) 4] So far as the Order VIII Rule 1 of CPC, which relates to the limitation to file written statement is concerned, it provides as under:- “[1. Written Statement.—The Defendant shall, within thirty days from the date of service of summons on him, present a written statement of his defence: Provided that where the defendant fails to file the written statement within the said period of thirty days, he shall be allowed to file the same on such other day, as may be specified by the Court, for reasons to be recorded in writing, but which shall not be later than ninety days from the date of service of summons.]” (Emphasis Supplied) 5] On a close scrutiny of the aforesaid Rules 6A, 6G and 6(1), it would reveal that under Rule 6A(3), the Legislature, in its wisdom has provided such discretion to the Court as it deems fit to allow the plaintiff to file written statement in answer to the counter-claim of the defendant, which can also be within such period as may be fixed by the Court. Whereas Rule 6G provides that the rules applicable to written statement by defendant, shall also apply to a written statement filed in answer to counter- claim, thus, by a necessary reference it would lead us to Rule 6(1), which provides that the written statement shall not be allowed to be filed later than 90 days from the date of service of summons. 6] In the considered opinion of this Court, had it been the intention of the Legislature to arrest the period of limitation up to 90 days of the filing of the counter-claim, then there was no reason for the Legislature to introduce Rule 6A(3), which provides that 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, and it would have simply done without it. The introduction of sub-rule (3) of Rule 6A leads this Court to believe that the Legislature has preserved the discretion of the Court in allowing the plaintiff to file the written statement to counter-claim within such time as may be fixed by the Court. 7] In such circumstances, in the present case when the defendant never took an exception to the adjournments sought by the plaintiff, and this Court also granting time to the plaintiff to file the written statement to the counter-claim, the plaintiff’s case would fall within the exception as provided under sub-rule (3) of Rule 6A of CPC, and it cannot be said that plaintiff was obliged to file the written statement to the counter-claim within 90 days of the filing of the counter-claim. 8] So far as the decision relied upon by the counsel for the defendant in the case of SCG Contracts India Pvt. Ltd. (supra) is concerned, the same is distinguishable and has no application in the facts and circumstances of the case as the aforesaid judgement deals with Order VIII Rule 1 of CPC only, and does not reflect upon the provisions of counter-claim as contained in Rule 6A and 6G of Order VIII of CPC, hence, the said analogy cannot be adopted in the filing of counter-claim. 9] In such circumstances, the objection raised by the defendant being without any substance, is hereby rejected. 10] Let the matter be listed on 23.01.2025 for settlement of issues.