A counterclaim must be raised before issue framing begins; late submissions risk disrupting judicial efficiency and violate procedural rules.

ORAL ORDER

This petition by the defendant in Com.O.S.No.1408/2023 is directed against the impugned order dated 25.06.2025 passed on I.A.No.3 by the commercial court, wherein the said application filed by the petitioner seeking amendment of the written statement by incorporating a counter claim was rejected by the commercial court by holding that in the light of the Three Judges Bench judgment of the Apex Court in the case of Ashok Kumar Kalra vs. Wing CDR.Surendra Agnihotri and others – (2020) 2 SCC 394 , the counter claim by way of proposed amendment sought to be incorporated beyond 04.02.2025 subsequent to the 1^st respondent – plaintiff having commenced his evidence by way of Affidavit in lieu of examination-in-chief on 07.01.2025 was dismissed by the commercial court by holding as under:-

“The plaintiff has filed this suit praying the Court to pass a judgment and decree against the defendants directing them to pay a sum of `.2,83,78,966/- along with the interest @ 18% p.a. from the date of filing the suit to the actual realization of the claim amount; such other orders as this Court may deem fit and proper in the nature and circumstances of the present case be passed in the interest of justice.

02. After issuance of summons the defendants have put forth their appearance before the Court through their counsel and filed written statement.

ORDERS ON IA NO.3

03. The defendants have filed IA No.3 under Order VI Rule 17 of CPC R/w Section 151 of CPC praying this Court to permit the defendants to carry out the following amendments in the written statement as detailed below in this application in the interest of justice and equity.

1. Add paragraph 14A after para 14, at page No. 3 as follows:

"It is pertinent to note that Defendant No. I did not instruct BZM to withhold the containers at Dar es Salaam. There should have been no delay in the release of the containers after the client/consignee 01.06.2022 nor was authorized to issue such instructions. Regardless of this lack of authorization, there should have been no delay in the release of the containers after 01.06.2022"

2. Add paragraph 21A after para 21, at page No. 5 as follows:

"The High Court of Tanzania on 10.09.2024, allowed the counter claim filed by Defendants against the agent of the Plaintiff. BZM for the claim of USD 642,250. In the interest of full disclosure BZM have issued a notice intending to appeal the aforementioned decision and the Defendants herein have also initiated execution Proceedings.”

3. Add para 44, 45 as follows:

COUNTER CLAIM

"44. It is submitted that the Defendant No.1 on the basis of a written assurance by the Plaintiff by way of the email dated 12.10.2022 (produced as Document No.2), proceeded to release payments to the tune of USD 642,250 which is in excess of the amounts Claimed by the Plaintiff."

03. The Plaintiff has also acknowledged the receipt of the aforementioned amount of USD 642.250 via email dated 17.03.2023 which included an attachment indicating the workings surrounding the transactions A copy of the email dated 17.03.2023 has been produced along with the present as well as along with a separate application seeking production of additional documents. However, the Plaintiff has failed to carry out the reconciliation as assured. The Plaintiff. therefore, is liable to reconcile the amount of USD 642.250 with the claimed amount of Rs.2.83,78,966.80/- and refund the excess amount paid by Defendant 1. which totals Rs. 2,75,90,358/-"

4. Add para 46 as follows:

“The cause of action for the counter claim arose 12.10.2022 when the Plaintiff assured that the excess amounts paid by Defendants would be reconciled by them and on 17.03.2023 when the when the Plaintiff acknowledged the receipt of the excess amounts i.e., USD 642,250"

5. Add para 47 as follows:

"The Hon'ble Court has the