Dr. S. Radhakrishnan, J.––By this petition, the petitioners being the original defendant Nos. 1 and 4 have sought to challenge the Judgment and Order of the trial Court dated 5.2.2001 whereby the trial Court had rejected the application for amendment of the written statement of defendant Nos. 1 and 4 in particular the counter claim filed therein.

2. The brief facts are that one Prabhakar Gajanan Naik had filed a suit for dissolution of partnership firm wherein the petitioner No. 1 being the defendant 1 is the partnership firm and petitioner 2 being a partner of the said partnership firm. In the said suit for dissolution of partnership, the present petitioners by their written statement disputed the existence of such partnership and took a plea that by way of a family arrangement defendant Nos. 1 and 4 were solely allowed to carry on the business setting up of South Konkan Distilleries. In the said written statement, the petitioners being defendant Nos. 1 and 4 also claimed that in view of various letters addressed by the original plaintiff to various Banks, the petitioners suffered loss in sense the said Distilleries could not be commenced as scheduled in May 1986 and as a result the petitioners suffered heavy loss. Accordingly in the said written statement the counter claim of Rs. 52 lakhs was made against the original plaintiff when the written statement was filed on 17.6.1987. The said counter claim is based on the Advocate's Notice dated 23.10.1986. The details of the counter claim of the said Rs. 52 lakhs are as under :––

Details of counter-claim of Rs. 52 lakhs worked out at the time of filing of the counter-claim.

Loss on account of non-commis- 25,00,000.00

sioning of plant on schedule

time (para)(i) of letter dated

23.10.1986

Loss on account of Income Tax 8,00,000.00

liability because of non-avai-

lability of depreciation (para)

(ii) of letter dated 23.10.1986

Loss on account of physical, illegal 4,00,000.00

seizure of books and blockade of

bank account (para) (iii) of letter

dated 23.10.1986.

Loss on account of writing letters 5,00,000.00

and telegrams to customers (para)

(iv) of letter dated 23.10.1986

Loss on account of stoppage of 5,00,000.00

trading activities and bank

account at Bombay (para) (v) of

letter dated 23.10.1986

Escalation in price of machinery 5,00,000.00

(para) (vi) of letter dated

23.10.1986

52,00,000.00

3. The petitioners thereafter filed an amendment application in the year 2000 to further amend the said counter claim seeking enhanced amount as under :

Details of Enhanced Counter-Claim as presently worked out.

Loss on account of non-commissioning of plant till date. Plant expected to be commissioned in May 1986 (para) (i)

Loss @ Re. 1/- per litre calculated on 20,000 litres per day assuming that the plant works for nine months in a year. Number of years from June, 1986 till November, 2000 works out to 14 years 6 months, i.e.,

(14 years x 9 months x 30 days x 7,83,00,000.00

20,000) + (4.5 months x 30 days x

20,000)

Note.–4.5 months taken into

Reckoning instead of six months

since 9-months production cycle

is assumed.

Less:–Originally claimed 25,00,000.00

7,58,00,000.00

Loss on account of repairs, main-

tenance and obsolescence 8,00,000.00

7,66,00,000.00

Loss on account of non-availability 26,00,000.00

of depreciation and tax effect of it.

Less: Already claimed. 8,00,000.00

18,00,000.00

Loss of account of denial of subsidy

by Government 17,50,000.00

8,01,50,000.00

4. To put it in other words, the petitioners had contended that they are suffering a loss of Rs. 20,000/- per day from the month of June 1986 and when the original written statement was filed, the counter claim was made only upto the date of filing of the said written statement and now by this amendment they are seeking to claim a sum of Rs. 20,000/- per day right from June, 1986 till November, 2000, less Rs. 25 lakhs.

5. With regard to the aforesaid amendment application, the respondent No. 1 herein being the original plaint