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1995 Supreme(AP) 271
Andhra Pradesh High Court
Judges : B.K.SOMASEKHARA
Srikanth Spinners K.Rajesham.Kalakal Industrial EState, Gajwel Taluk, Medak district - Appellant
Versus
State Bank of India, Toopran, Medak District, rep.by its Branch Manager - Respondent
C.M.P. No. 7936/95 in CRP. No. 786/95
Decided On : 06-15-95
Advocates Appeared :
Mr. V.S.R. Anjaneyulu, Mr. K. Sridhar Rao
Headnote:CODE OF CIVIL PROCEDURE, Or. 8, Rules 6-A and B - Distinction Counter-claim preferred by defendant in a suit for recovery of money after filing written statement. - Defendant hypothecating machinery in favour of plaintiff Bank - Amendment of written statement by way of counter-claim alleging loss of security when it caught fire Can be allowed as ground of defence.
HELD: In this case, wherein the present petitioner, who is the defendant in the suit, was called upon to pay certain debts of the Bank-plaintiff in the suit, in a transaction wherein certain machinery of the petitioner had been hypothecated to the plaintiff-Bank. The proposed amendment by way of counter-claim has alleged that such a security of the machinery has been lost when it caught fire whereby the defendant is deprived of the machinery hypothecated with the Bank and was also made to pay the debt once again which was actually covered by the security. It appears the allegation is that no insurance was taken.
From the tenor of such defence, it appears that the petitioner has attributed laches on the part of the, the plaintiff-Bank in not preserving or saving the security for not only the benefit of the Bank but also to the benefit of the defendant and to discharge the debt and that by not taking insurance to indemnify such a loss.
Admittedly, such an event occurred after filing the written statement. Obviously, the defendant could not have brought that fact to the notice of the Court before filing the written statement. Therefore as a matter of subsequent event, the defendant was entitled to bring it to the notice of the court, which the court was bound to consider and decide the same in accordance with law.
Order 8 Rule 6.A debars the defendant from setting up any counter-claim or set off after filing written statement except in the circumstances stated above. But Order 8 Rule 8 gives him an opportunity to raise a ground of defence after filing the written statement claiming a set off or counter-claim. The difference appears to be that in the former the expression used is
"setting of set off or counter claim against the claim of the plaintiff in respect of a cause of action before filing the written statement", whereas in the latter provision, viz. Order 8 Rules 8, the defendent will be permitted to raise a ground of defence in record to such a claim. Setting of counter claim under the former provision would be something different from raising a defence in regard to a counter-claim or set off. In case a counter claim is set up it has got all the characterstics of a suit, whereby the parties are bound by the law of pleading etc., including payment of court fees etc., In regard to the latter provision of merely by raising a defence to counter claim or set off in case the claim of the plaintiff in the suit can be adjusted by way of set off, no question of allowing the counterclaim will arise. If such a counter claim is found to be true during the trial, the Court can definitely pass a decree in favour of the defendant subject to payment of court-fee etc.
( 1 ) THERE is no representation on behalf of the respondent. Therefore, the learned Advocate for the petitioner has been heard and the matter is being disposed of on merits.
( 2 ) THE petitioner seeks review of the judgment of this Court in C. R. PNo. 786 of 1993 dated 1-7-1994 reported in Srikanth Spinners represented by its Proprietor k. Rajesham Kalakal vs. State Bank of India, Toopran Branch, Gajwel Taluk.
( 3 ) THE grounds on which the review is sought are:- (I) That the learned Advocate for the petitioner could not be present when the matter was taken up for consideration due to illness, to place all the relevant grounds to dispose of the matter; (II) that the decisions of the Supreme Court in Mahendra Kumar and another vs. State Bank of Madhya Pradesh and Others and of Orissa High Court in mangulu Pirai vs. Prafulla Kumar Singh and Others and the provisions of order 8 Rule 8 of Civil Procedure Code were not considered by the court and if so considered, would have led to different results; (III) that the Court has relied upon the precedent of Orissa High Court in kashi Biswanath Dev. vs. Paramananda Routrar, which was overruled by a Division Bench of the same High Court in Mangulu Pirai vs. Prufulla kumar Singh and others) and (IV) there are errors which are apparent on the face of the record which warrant powers of this Court to review its own judgment.
( 4 ) THE said case was disposed of by this Court with a definite record of the absence of the learned advocate for the petitioner in that case more than once and after hearing the learned Advocate for the respondent and on merits. The question before the Court was the correctness and the legality of the orders passed by the learned Subordinate Judge, Siddipet in O. S. No. 44/89 in LA. No. 412/92 dismissing the petition on the ground that the present petitioner, who was the defendant in the suit, was not entitled to set up counter-claim after filing written statement by virtue of Order 8 Rule and A of C. P. G but in fact, in the said LA. amendment of the written statement was claimed under Order 6 rule 17 C. P. C. This Court, relying upon Order 8 Rule 6-A and Order 6 Rule 17 c. P. C. and the two pronouncements in Kashi Biswanath Dev. vs. Paramananda routrai (supra) and Bank of Baroda vs. Gurcharan Singh, came to the conclusion and laid down the law that in a suit filed for recovery of money counter-claim cannot be set up after filing written statement particularly in the guise of amending the written statement. In support of such a view, the dicta laid down in Dega Films vs. M/s Lotus Productions, Vishwanath Lohia vs. Allahabad Bank bhaskar Chandra Behera vs. Ranital Rice Mill, Bansidhar Mahanty vs. United Bank of India and TKVS Vidyapoornachary vs. M. R. Krishnachari was relied upon. While agreeing with such law laid down in such proceedings, this Court stated as follows:"this Court respectfully agrees with such a legal principle laid down therein and reiterate that counter-claim cannot be set up by a defendant after filing the written statement and particularly in the guise of amending the written statement. The simple implication of such a provision appears to be that there must be expeditious disposal of all the controversies between the parties arising out of the same transaction and leading from the same cause of action. That the plaintiff should not be taken by surprise by the defendant and the defendant should think of setting up counter claim in answer to the plaintiff s claim of recovery of money as part and parcel of the same transaction leading to the same cause of action. "based on that, the dismissal of the application for amendment by the learned subordinate Judge was supported.
( 5 ) MR. ANJANEYULU, the learned advocate for the petitioner has contended that in view of the clear law laid down Mahendra Kumar and Another vs. State Bank of Madhya Pradesh and Others (supra) by the Supreme Courtand Mangulu Pirai vs. Prafulla Kumar Singh an
