A counter claim cannot be entertained if the cause of action is barred by limitation on the date it is preferred, as per the Code of Civil Procedure.

JUDGMENT

OPC No.2169 of 2016 has been filed challenging Ext.P9 order, whereby an application filed by the petitioner for striking off paragraphs 2 to 8 in the written statement has been dismissed by the Court below. The petitioner had filed OS.No.540 of 2013 for realisation of amounts based on five dishonored cheques. The issuance of the cheques and its dishonor is not disputed. The respondents filed a written statement and also a counter claim alleging that the petitioner had borrowed an amount of Rs.50 lakhs on condition to repay the same within two years. The date of borrowal is stated to be 11.04.2009. The suit was filed in 2013, by which time, the period of limitation for claiming the amount of Rs.50 lakhs had already expired. The counter claim was preferred on 13.08.2014. According to the petitioner, the counter claim is barred by limitation. It is also submitted that no documents were placed on record to show the transaction on 11.04.2009. The petitioner hence contended that there is no scope for conducting any trial on the counter claim since there are no triable issues raised and there is also no scope for entertaining the counter claim, since it is barred by limitation. It is in the above circumstances that the prayer for striking off paragraphs 2 to 8 has been preferred. The petitioner contended before the trial Court that in view of the decision of this Court in Gwalior Rayons Silks Manufacturing Company Limited vs. Ramadas [1987 (2) KLT 1035], if the cause of action of the claim was barred by limitation on the date on which the counter claim was preferred, the Court cannot entertain the same and has to exclude it under Order 8 Rule 6C of Code of Civil Procedure and the plaintiff can request the Court to exclude the counter claim to be decided in an independent suit without being disposed of as a counter claim in the suit.

2. The Court below considered the arguments and noted that it is a case where the counter claim had already been entertained and issues have also been raised and hence the question of limitation has to be determined while adjudicating the counter claim and it is not proper for excluding the counter claim in the pre-adjudication stage by accepting the plea of limitation. It is also noted that the plaintiff had not prayed for striking off the counter claim or to exclude the counter claim and had only requested to strike off paragraphs 2 to 8 by alleging that no triable issue has been raised for determination. The Court found that in order to decide the entitlement of the petitioner to realise the plaint claim by appreciating the pleadings put forward by the respondents in the written statement, paragraphs 2 to 8 of the written statement are essential and hence it cannot be struck off. The said order is challenged in this original petition.

3. The counsel for the petitioner pointed out that in the counter affidavit filed by the respondents, it is stated that correct dates and details of entrustment of the cheques were not available while filing the written statement and the counter claim due to misplacement of the records by the previous Advocate and that the records have later been found and the same will be filed within a short time. It is also stated that if the pleadings are struck off on the basis of not raising any issue to that effect due to the omission of the Court, it will be the same fate in the suit since no triable issues had been raised in respect of the plaint claim. It is hence claimed in the counter affidavit that the allegations put forward by the plaintiff in the written statement and the petition for striking off the paragraphs is to be decided on merit afte