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1998 Supreme(Cal) 315
HIGH COURT OF CALCUTTA
AMITAVA LALA, J.
Jitendra Kumar Khan - Appellant
Versus
Peerless General Finance And Investment Company Ltd – Respondent
Decided on : July 28, 1998
Abhijit Chatterji, Anil Mukherjee, Bhaskar Prasad Gupta, Debasish Das,
A defendant can claim set-off against the plaintiff's demand only if the claim is an ascertained sum of money legally recoverable by the defendant from the plaintiff and both parties fill the same character as they fill in the plaintiff's suit.
Headnote:
CIVIL PROCEDURE - Amendment of Pleadings - Order VI Rule 17 and Order VIII Rule 6 - Set-Off - Counterclaim - Limitation - Interpretation and Application.
Fact of the Case:
The defendant sought to amend its written statement to incorporate a claim of set-off and/or counterclaim for a loan given to the plaintiff. The original suit was filed by the plaintiffs, agents of a company, to recover their claim for commissions and other incentives payable to agents/field officers by the defendants.
Finding of the Court:
The court held that the proposed amendment was not permissible as it introduced a new cause of action and was barred by limitation. The court distinguished between legal set-off, equitable set-off, and counterclaim and held that the claim of set-off did not arise out of the same transaction as the plaintiff's claim and therefore could not be allowed.
Issues: 1. Whether the defendant could amend its written statement to incorporate a claim of set-off and/or counterclaim? 2. Whether the claim of set-off was barred by limitation? 3. Whether the counterclaim was barred by limitation?
Ratio Decidendi: 1. Order VI Rule 17 of the Code of Civil Procedure allows for the amendment of pleadings, but Order VIII Rule 6 of the Code of Civil Procedure provides that a defendant can claim set-off against the plaintiff's demand only if the claim is an ascertained sum of money legally recoverable by the defendant from the plaintiff and both parties fill the same character as they fill in the plaintiff's suit. 2. The claim of set-off did not arise out of the same transaction as the plaintiff's claim and therefore could not be allowed. 3. The counterclaim was barred by limitation as it was not made before the delivery of the defense or before the time limited for delivering the defense.
Final Decision: The application for amendment of the written statement was dismissed.
1. THIS is an application of the defendant no. 1 for the purpose of obtaining leave to amend the written statement and various other consequential reliefs by incorporating paragraphs 20 (A)and 20 (G) as underlined by red ink to set up a claim of set off and/or counter claim for the purpose of recovering loan given by the defendant No. 1 to the plaintiff No. 1
2. THE original suit was instituted In the year 1993 by the plaintiffs being agents of the company for recovery of their claim praying inter alia (a) Leave under Clause 12 of the Letters Patent; (b) Declaration that the plaintiffs are entitled to be paid all commissions and other incentives payable to agents/field officers by the defendants in respect of the transactions and/or business which was done through the customers/certificate holders introduced by the defendant no. 9 and/or her field officers/agents introduce by her in accordance with the relevant circular/terms and conditions of appointments of all agents/field officers of the defendants until suitable disciplinary actions are taken by the defendant no. 1 against the offending defendant nos. 8 to 10 and/or their superior officers/agents working in the concern and responsible for such direction of business of the plaintiffs; (c) A decree for Rs, 25,00,000/- against the defendant no. 1 and against other defendants jointly, severally or in the alternative- (d) An enquiry into the damage suffered by the plaintiffs and decrees such sums as may be found due upon such enquiry a decree be passed on the amount as may be found due and payable; (e) Accounts; (f) Receiver; (g) Injunction; (h) costs and (i) Further and/or other reliefs.
On the other hand, by way of proposed amendment the defendant wanted to incorporate the following reliefs :
(a) A decree for a sum of Rs. 4,19,509. 43 (Rupees Four lakhs nineteen thousand and five hundred nine and forty three paise only), in favour of the Peerless General Finance and Investment company Ltd. , the above-named defendant no. 1 and against jitendra Kumar Khan, the above-named plaintiff no. 1, as stated in paragraph 20e above;
(b) A decree for further interest, as stated in paragraph 20f above;
(c) If necessary, an enquiry into the sum due and payable by Jitendra Kumar Khan, the above-named plaintiff no. 1, to the peerless General Finance and Investment Company Ltd. , the above-named defendant no. 1, and a decree for the sum found due on such enquiry;
(d) Receiver;
(e) Injunction;
(f) Attachment;
(g) Costs and
(h) Further or other reliefs;
3. BY making this application Mr. Bhaskar Prosad Gupta, learned senior counsel appearing with Mr. Avijit Chatterjee, Advocate, submitted that while Order VI Rule 17 of the Code of Civil Procedure speaks for the amendment of pleadings, then Order VIII Rule 6 of the Code of Civil procedure speaks about the particulars of set off. In this case, both should be read together.
4. UPON perusing Order VI Rule 17 of the Code of Civil Procedure it appears that the court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real question of controversy between the parties.
Upon perusing the Order VIII Rule 6 of the Code of Civil Procedure, it appears that where in a suit for recovery of money; the defendant claims set off against the plaintiffs' demand, any ascertained sum of money legally recoverable by him from the plaintiff, not exceeding the pecuniary limits of the jurisdiction of the court and both parties fib the same* character as they fill in the plaintiffs suit, the defendant may, at the first hearing of the suit, but not afterwards, unless permitted by the court, present a written statement containing particulars of the debt sought to be set off.
5. THEREFORE, prima Jade, Order VI Rule 17 of the Code of Civil Procedure has its limit in case of set off as. prescribed u
