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IN THE HIGH COURT OF KERALA AT ERNAKULAM
P. SOMARAJAN, J.
K. Sheela, W/o. Babukuttan - Appellant
Versus
State Bank of Travancore & Ors. - Respondents
RFA No. 498 of 2013
Decided On : 15-02-2022
Civil Procedural Code, 1908 - Rule 6A, 6A(4), 6C of Order VIII - Rule 10(2) of Order I - Appeal - Counter claim by defendant - Suit for recovery of money - Sole defendant in a suit for recovery of money came up in appeal aggrieved by dismissal of counter claim - Suit was decreed granting recovery of amount due to plaintiff/Bank - Defendant submitted her written statement by raising a counter claim by impleading counter claim defendant No.1 and 2 and claimed that counter claim 2nd defendant is bound to grant 30% of loan amount as margin money - Trial court thereon has given a separate cause title to counter claim as counter claim plaintiff and defendant by impleading an additional party, counter claim 2nd defendant and proceeded to consider both suit and counter claim and rendered a judgment and decree - It is under challenge by sole defendant in suit, who is counter claim plaintiff on reason that trial court ought to have granted a decree allowing counter claim as against counter claim defendants i.e. original plaintiff in suit and additional party, counter claim 2nd defendant.
Finding of the Court :
Counter claim should be treated as a plaint and governed by rules applicable to plaint by virtue of sub-rule (4) of Rule 6A of Order VIII C.P.C. But, that provision should be read as an enabling provision, subject to restriction and limitations incorporated under sub-rule (1) to (3). Further, court cannot exercise its jurisdiction under sub-rule (2) of Rule 10 of Order I C.P.C., either to strike out or to add any party in a counter claim, though it is permissible in suit - To deal with abovesaid situations viz., either to strike out or add parties by exercising jurisdiction under Order I Rule 10 C.P.C. or to implead an additional party as counter claim defendant, except in case of any such necessity to implead for fair determination of suit matter, court has to exclude counter claim by a specific order under Rule 6C of Order VIII C.P.C. by permitting defendant to go for a separate suit in that behalf - In short, at instance of defendant, who had raised counter claim, there cannot be any impleadment of an additional party either as a counter claim defendant or otherwise except under Order XXII C.P.C. - Hence, impleadment of additional counter claim defendant by trial court is so erroneous and is legally unsustainable - Trial court dismissed counter claim on reason that scheme for allowing 30% of margin money was closed by time when loan was sanctioned and claim was raised - In fact, trial court ought to have excluded counter claim as it is against a third person, who was impleaded as counter claim defendant No.2 so that defendant can go for a suit against said counter claim defendant No.2. But, evidence was adduced by both parties fully knowing dispute involved in counter claim and a judgment was rendered - Hence, adjudication rendered is binding on both parties - Counter claim was dismissed on its merit on ground that scheme settled has elapsed as on date of loan transaction and claim and as such, there is nothing to interfere with judgment and decree of trial court dismissing counter claim.
Result : Appeal dismissed.
JUDGMENT :
The sole defendant in a suit for recovery of money came up in appeal aggrieved by the dismissal of the counter claim. The suit was decreed granting recovery of the amount due to the plaintiff/Bank -State Bank of Travancore. The defendant submitted her written statement by raising a counter claim by impleading the counter claim defendant No.1 and 2 and claimed that the counter claim 2nd defendant is bound to grant 30% of the loan amount as margin money. The trial court thereon has given a separate cause title to the counter claim as counter claim plaintiff and defendant by impleading an additional party, the counter claim 2nd defendant and proceeded to consider both the suit and the counter claim and rendered a judgment and decree. It is under challenge by the sole defendant in the suit, who is the counter claim plaintiff on the reason that the trial court ought to have granted a decree allowing the counter claim as against the counter claim defendants i.e. the original plaintiff in the suit and the additional party, the counter claim 2nd defendant.
2. It appears that the trial court has committed a grave mistake by impleading an additional party as counter claim 2nd defendant for the purpose of adjudicating the counter claim. It is not permissible to implead a third person for the purpose of adjudicating a counter claim. On the other hand, the counter claim raised should be within the four corners of Rule 6A of Order VIII C.P.C., which is extracted below for reference :
Provided that such counter-claim shall not exceed the pecuniary limits of the jurisdiction of the Court.
(2) Such Counter-claim shall have the same effect as a cross-suit so as to enable the Court to pronounce a final judgment in the same suit, both on the original claim and on the counter-claim.
(3) The plaintiff shall be at liberty to file a written statement in answer to the counter-claim of the defendant within such period as may be fixed by the Court.
(4) The counter-claim shall be treated as a plaint and governed by the rules applicable to plaints.”
3. In order to maintain a counter claim (1) it should be against the plaintiff (2) it should be on a cause of action accrued to the defendant against the plaintiff either before or after the filing of the suit, but before the defendant has delivered his defence or before the time limited for delivering his defence (3) it should not exceed the pecuniary limits of the jurisdiction of that court. There is no provision for impleading any person as counter claim defendant. The counter claim should be against the plaintiff and shall not be against any other person, who is not in the party array of the suit. Further, no counter claim can be raised between the co-defendants, unless adjudication of such counter claim or dispute between the co-defendants is necessary for the fair determination of the issues involved in the suit between the plaintiff and the defendant. This would make the legal position clear that a counter claim can only be raised against the plaintiff/plaintiffs in the suit and not against a third person or a stranger and for that purpose, no third person or stranger can be impleaded as an additional counter claim defendant.
4. The counter claim should be treated as a plaint and governed by the rules applicable to the plaint by virtue of sub-rule (4) of Rule 6A of Order VIII C.P.C. But, that provision should be read as an enabling provision, subject to the restriction and limita
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