HIMA KOHLI, J.

I.A. 11535/2015 (by the defendant, under Order VI Rule 17 CPC)

1. The present application has been filed by the defendant under Order VI Rule 17 of the Code of Civil Procedure (for short `the Code’) praying inter alia for permission to amend the written statement and introduce a counter claim as proposed in paras 8 to 11 therein.

2. Before dealing with the respective submissions advanced by the counsels for the parties, a brief reference to the factual background of the case is necessary.

3. The plaintiff company(tenant) has filed the present suit on 21.5.2013, for seeking recovery of a sum of Rs.42,10,000/- towards the security amount allegedly wrongfully withheld by the defendant(landlord), along with the pendente lite and future interest and for claiming damages to the tune of Rs.10 lacs .

4. Summons were issued in the suit on 24.5.2013, returnable on 28.11.2013. After the service of the summons, the defendant had filed the written statement on 6.9.2013 and the plaintiff had filed the replication on 6.11.2013. Pleadings were completed in the suit, the case remained pending before the Joint Registrar for admission/denial of documents that was finally conducted on 29.1.2015. The case was listed before the court on 23.3.2015, for framing of issues and with the consent of the parties, they were referred to mediation, but as is apparent from the Mediator’s report dated 5.5.2015, there was no amicable settlement. Thereafter, the present application came to be filed by the defendant on 18.5.2015, seeking leave to file a counter claim.

5. Ms. Chaudhry, learned counsel for the defendant had submitted that the suit for recovery of money has been filed by the plaintiff for recovery of the security amount to the tune of Rs.42,10,000/- deducted by the defendant (landlord). The lease deed in respect of the tenanted premises that was originally for a period of three years, commencing on 1.10.2008 and had expired on 30.9.2011. A fresh lease deed was executed by the parties for a period of four years, that commenced on 1.10.2011 and was to expire on 30.9.2015. The renewed lease deed had a lock-in period of 24 months. It is the case of the defendant that though the said lock in period was to expire on 1.10.2013, the plaintiff had proceeded to vacate the suit premises nine months in advance, on 31.12.2012.

6. Learned counsel for the defendant had stated that at the time of filing the written statement, a specific plea was taken by the defendant in para 2 of the preliminary objections and para 5 on merits to the effect that the plaintiff company had breached clause 4.2 of the lease deed dated 30.9.2011, by vacating the suit premises prior to the expiry of the lock-in period and it is liable to pay a sum of Rs.29,66,023/- towards the rental for the period of nine months which was a part of the lock-in period. It was stated that in order to mitigate the losses caused at the hands of the plaintiff company, the defendant had made sincere efforts to look out for a tenant and finally, in July 2013, he had executed two separate lease deeds in respect of different portions of the suit premises with two different parties. After adjusting the rent that was received from the said parties, the amount payable by the plaintiff company for the lock-in period stood reduced from a sum of Rs.29,66,023/-, to a sum of Rs.9,03,155/-. Premised on the aforesaid claim, the defendant seeks leave to file a counter claim for recovery of an amount of Rs.11,23,310/- payable by the plaintiff company for the remaining lock-in period, including the interest component.

7. Learned counsel for the defendant stressed that the present application is bonafide and made at the earliest opportunity. She stated that the plaintiff company would not be prejudiced in any manner if the application is allowed as issues have not been framed so far and the trial in the suit has yet to commence. She added that even otherwise, the period of limitation for filing a sui