The main legal point established is that while the general rule is to file a counterclaim at the time of filing the written statement, there is no bar to raising it at any time later, and the issue of limitation can be addressed during trial.

JUDGMENT

(Prayer: Application is filed under Order XIV Rule 8 of Original Side Rules read with Order VI Rule 17 of the Civil Procedure Code, 1908, to allow the defendant to carry out the proposed amendments in his written statement for raising his counterclaim.)

Common Order

1. This application has been filed to carry out the proposed amendment in the written statement filed by the applicant / defendant and to raise his counter claim.

2. The learned counsel for the applicant / defendant submitted that the respondent / plaintiffs have filed a suit for recovery of money to the tune of Rs.1,10,00,000/- along with interest @ 18% per annum; the respondents plaintiffs have admitted that they have entered into a sale agreement dated 02.02.2012 with the applicant / defendant for selling an immovable property and received Rs.1,00,00,000/- as advance; in the written statement, the applicant made it clear that it is the respondents / plaintiffs who owe money to him and he did not owe any money to the respondents; the respondents have received money from the applicant as advance and hand loans for a sum of Rs.5,71,00,000/- and this Court vide its order dated 09.03.2021 has framed the following issue to that effect: “ Whether it is true that the defendant already parted with the money to the plaintiffs to the tune of Rs.5,71,00,000/-?”

It is further submitted that the applicant had omitted to seek a formal counterclaim basing on the written statement.

2.1. Reliance on the side of the applicant was placed on Ashok Kumar Kalra Vs. Wing CDR.Surendra Agnihotri and others reported in 2020 1 SCC (Civ) 545 in which it is held that a counterclaim can be permitted to be filed after framing issues and before recording the plaintiff''s evidence; hence the respondents / plaintiffs have to suitably amend the written statement for making their counterclaim.

3. The learned counsel for the respondents / plaintiffs submitted that the application has been filed after the commencement of the trial and the alleged counterclaim itself is barred by limitation; the reason set out by the applicant for amendment is also not sustainable; instead of continuing the trial, the applicant / defendant has filed this application with some malafide intention; as per the Proviso to Order VI Rule 17 CPC there cannot be any amendment to pleadings after the commencement of trial unless it is shown that despite of due diligence, the party could not raise the matter before the commencement of trial; the proposed amendment sought to be made by the applicant / defendant has a scope to alter the nature of the suit and defense taken by him; the counterclaim ought to have been made within a period of three years from the date of cause of action of the alleged claim. 3.1 The learned counsel for the respondent relied on the judgment of the Hon''ble Supreme Court held in the case of Revajeetu Builders and Developers Vs. Narayanaswamy and sons and others reported in [2009] 10 SCC 84 and submitted that as a general rule the Court, should decline the amendments if the amended claim is barred by limitation on the date of the application; the amendment sought by the applicant changes the fundamental nature and the character of the suit and the counterclaims would be barred by limitation; since the suit was filed in the year 2016 after three years from the date of disbursal of the alleged loans and hence it is barred by limitation.

4. The primary objection raised by the respondents / plaintiffs is that the counterclaim itself is barred by limitation and the permission sought to permit the applicant / defendant to carry out amendment for seeking counterclaim after the commencement of trial is not permissible in law. In the judgment of the Hon''ble Supreme Court in Revajeetu Builders''s case (cited supra), it is held that following factor should be taken into consideration while dealing with the applications for amendmen