The admissibility of a counter claim in a suit for recovery of money and the application of relevant provisions of the Civil Procedure Code.

1. Heard learned counsel for the applicant finally this being Revision Application. This Civil Revision Application has been filed by original plaintiff against order dated 5.7.2011, passed by Jt. Civil Judge, Senior Division, Aurangabad, permitting counter claim of the respondent-defendant to be taken on record and giving directions to frame additional issue in view of counter claim as plaintiff had filed written statement.

2. Plaintiff brought the suit for recovery of Rs.16,24,222/- claiming that plaintiff-partnership is having Head Office at Nasik, and that at Aurangabad the defendant was orally appointed as Manager of the firm on consolidated salary of Rs.7000/- per month. It is claimed that the defendant left the service of plaintiff on his own on 1.9.2006. Plaintiff checked accounts and filed the suit for the recovery of amounts giving particulars in para 8 of the plaint. One of the item is that, defendant had received excess payment than as agreed by way of salary.

3. The defendant filed written statement and appears to have claimed that as per oral agreement, in addition to salary, he was entitled to sale incentives @ 2% on sale proceeds of each year. He claimed settlement of accounts and in the counter claim he sought rendition of accounts from plaintiff.

4. It appears that, earlier the counter claim was rejected by the trial Court and defendant had moved First Appeal No.1627/2010 [2011(8) L.J. Soft. 102], which was allowed as the trial Court had, without giving opportunity to adduce evidence, dismissed the counter claim on merits and even directed that decree be drawn at the stage of preliminary issue.

5. After disposal of the earlier First Appeal, the present order has been passed by the trial Court after hearing the parties.

6. Learned counsel for applicant has submitted that the counter claim is not maintainable as the same has not been properly valued and there is no documentary evidence in support of the counter claim and that the counter claim is barred by limitation. Learned counsel for applicant has relied on the case of K.C. Skaria Vs. Government of State of Kerala & anr., reported in 2006(2) Mh.L.J. 769 to submit that in matter like the present one, the counter claim cannot be maintained as the defendant ought to have known what are the incentives which were being claimed by him. Of course, the learned counsel is submitting that there was no such agreement as regards grant of incentives.

7. Perusal of the order of the trial Court shows that, the trial Court considered that the counter claim is for rendition of accounts and the amount is not ascertained and the court fee paid by defendant on counter claim should be prima facie accepted and that the court fee can be recovered at the time after ascertaining of the amount. The trial Court considered the judgment in the matter of "K.C. Skaria" (supra) and observed that, in present matter the defendant was working as Sales Manager of the plaintiff firm. The trial Court found that, in this matter, the counter claim was permissible. The trial Court has also observed that, looking to the rival contentions, question of limitation cannot be decided at the threshold.

8. According to the learned counsel for applicant, as per Order VIII Rule 6(C) of the Civil Procedure Code (CPC for short), the plaintiff had sought rejection of the counter claim. Learned counsel has relied on Order VIII Rule 6(C) read with the amendment applicable in Maharashtra, which is at Order VIII Rule 13 of the CPC, to submit that the counter claim could not have been maintainable and defendant can very well file separate suit. Order VIII Rule 6(C) of the CPC reads as under:

"6-C. Exclusion of counter claim:- Where a defendant sets up a counter claim and the plaintiff contends that the claim thereby raised ought not to be disposed of by way of counter claim but in an independent suit, the plaintiff may, at any time before issues are settled in relation to the counter-claim, apply to the Court for a