Friday, 13 November 2015

Whether deft can be denied permission to file counter claim on the ground of withdrawal of suit of plaintiff?

 The contentions of the learned counsel appearing for the
respondents   based   on   the   Supreme   Court   judgments   and   the
judgments   of   this   Court   with   regard   to   the   grant   or   refusal   of
amendment,  at such stage of proceeding, and the counter claim is
beyond   the   limitation;   there   is   no   question   of   entertaining   such
amendment application, are not acceptable for the reasons referred

above.  However, this in no way read to mean that the counter claim
so raised is decided finally in favour of the petitioner. The trial Judge
is required to deal with the same in accordance with law.  Therefore,
merely because suit/claim raised by the bank was dismissed/disposed
of for want of prosecution, that itself cannot be the reason to deny
the counter claim raised by the petitioner at this stage.  Therefore, in
the present facts,  I am not inclined by accept the submission that the
suit claims/counter claims ought not to have been allowed. 
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
  CIVIL APPELLATE JURISDICTION 
WRIT PETITION NO.10523 OF 2013
Shri Girish Manohar Mokashi .. Petitioner.
                             V/s
The Dombivli Nagari Sahakari Bank Ltd .. Respondent.  

CORAM  :   ANOOP V. MOHTA, J.
DATE      :   FEBRUARY 11, 2015
Citation; 2015(5) ALLMR 804

Rule returnable forthwith.  Heard finally. 
1) The petitioner­original respondent No.2 has challenged
the order dated 05 September, 2013 passed by the learned President,
Maharashtra State Co­operative Appellate Court, thereby allowing
the appeal filed by the respondent­bank.   The order passed by the
Trial Judge is set aside   and the application Exhibit 36 i.e. for the
amendment to bring the counter claim is rejected. 
2) A Suit was filed by the bank in the year 1995.   The
petitioner filed reply/written statement on 18 December, 2009.  On
24 March, 2011, a pursis filed by the bank for withdrawal of the

claims.   The petitioner, therefore, in the background taking note of
sudden   stand   taken   by   the   bank   to   withdraw   the   suit,   beside
justifying   the   amendment   application   covering   the   counter   claim
based on the events and the pleadings placed on record referring to
the   claims   as   well   as   defences   so   raised,   filed   the   amendment
application on 25 August, 2011.
3) After hearing both parties, the amendment application
was allowed on 20 December, 2012.  The petitioner carried out the
amendment on 03 January, 2014 itself.  The appeal was filed on 18
February, 2013.  By  impugned order dated 05 September, 2013, the
appeal was allowed and thereby rejected the amendment/counter
claim application filed by the petitioner.     There is no issue that
pending the writ petition,  on 06 December, 2013, the respondent's
claim/dispute   was   dismissed   for   non­prosecution   with   reasoned
order.   This  background  supports  the  case  of  the  petitioner  with
regard to the grant of amendment as done by the court below for the
reasons so stated apart from the undisputed position on record, so
referred above.  
4) The  claim  was raised and  the  defence  so filed at an
appropriate time could have been decided in accordance with law,

which was also in the background of payment of Rs.1,01,300/­ on 11
June, 1982.   There is no denial to the fact that the averments are
raised in the written statement in this regard.   The already filed
written statement, in no way debars the petitioner to continue with
the defences and the counter claims so raised, in the situation that
the bank itself decided to withdraw the suit.  Admittedly, the  pursis
of   withdrawal   of   the   suit   was   also   dismissed   and   lateron,   the
dismissal of suit for  non­prosecution  itself  is an additional  factor
which goes in support of the petitioner, the  intention of the bank was
clear not to defend the case of earlier payment by the petitioner,
apart from, not supplying the documents asked for the relevant time,
not   to   prosecute   and   proceed   further,   in   view   of   the   specific
plea/defence so raised in the written statement.  The pursis was filed
after the filing of the written statement by the petitioner. 
5) The contentions of the learned counsel appearing for the
respondents   based   on   the   Supreme   Court   judgments   and   the
judgments   of   this   Court   with   regard   to   the   grant   or   refusal   of
amendment,  at such stage of proceeding, and the counter claim is
beyond   the   limitation;   there   is   no   question   of   entertaining   such
amendment application, are not acceptable for the reasons referred

above.  However, this in no way read to mean that the counter claim
so raised is decided finally in favour of the petitioner. The trial Judge
is required to deal with the same in accordance with law.  Therefore,
merely because suit/claim raised by the bank was dismissed/disposed
of for want of prosecution, that itself cannot be the reason to deny
the counter claim raised by the petitioner at this stage.  Therefore, in
the present facts,  I am not inclined by accept the submission that the
suit claims/counter claims ought not to have been allowed. 
6) The power of Appellate Authority, though not limited or
restricted, the grant of amendment order passed by the Trial Court in
the   background,   cannot   be   stated   to   be   perverse   and   illegal.
Therefore,   in   the   interest   of   justice,   by   keeping   all   the
defences/points open for the respondent­bank to including the  issue
of   limitation,   I   am   inclined   to   interfere   with   order   dated   05
September, 2013 and order accordingly.  
7) For the reasons so stated above and for the reasons so
mentioned   by   the   Trial   Judge,   order   below   Exhibit   36   dated   20
December, 2012 is restored by granting the amendment application.
Thus, the following order.

: ORDER :
1. Quash and set aside order dated 05  September, 2013, order
below   Exhibit   36   dated   20   December,   2012   granting   the
amendment application is maintained.
2. All points are kept open including of limitation.
3. Petition is accordingly allowed.
4. No costs. 
                               ( ANOOP V. MOHTA, J. )

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