CHARTERED BANK Vs. INDO SWISS CIRCUITS PRIVATE LIMITED

JUDGEMENT

(1.) The defendants moved this application under Order 6 Rule 17 of the Code of Civil Procedure (in short the Code) for amendment of their written statement so as to include their counter-claim in the sum of Rs. 4-02,500.00 with all the detailed circumstances attending thereto. This application has been resisted by the plaintiff. The only short question involved in deciding his application is if the defendants can be permitted to amend their written statement so as to include their counter-claim in view of the specific provision of law contained in Order 8 Rule 6-A of the Code which provides for the filing of the counter-claim by the defendants before the defendants have delivered their defence or before the time limited for delivering their defence has expired. Order 8 Rule 6-A reads as under :-

(2.) The perusal of this provision of law shows that the legislature did not leave any discretion with the Court in the matter of the stage when the counter-claim is to be filed by the defendant inasmuch as this provision has clearly defined the stage when the counter-claim is to be filed, by providing that it has to be filed before the defendant has delivered his defence or before the time limited for delivering his defence has expired. The bar, thus, contemplated in this provision of law is quite unmistakable and unambiguous on the face of it regarding the filing of the counter-claim after the defendant has filed his written statement or after the time limited for delivering his defence has expired which meanings can be given to the phrases but before the defendant has delivered his defence or 'before the time limited for delivering his defence has expired'. Occurring in Rule 6-A. The omission of any discretion of the Court in the matter of advancing the stage of filing the counter-claim beyond what has been stated so precisely in Rule 6-A, is clear not only from the plain working of this provision but is further manifest from the comparative reading of Rules 6 and 6-A of Order 8 as in Rule 6 discretion has been given to the Court whereby the defendant can be permitted even at a later stage to claim set-off in the written statement. Rule 6 is "?et out below :-

(3.) The stage for filing the set-off in Rule 6 is the first tearing of the suit but not afterwards unless permitted by the Court. Rules 6 and 6-A are contiguous to each other and whereas Rule 6 has been in existence since long. Rule 6-A was inserted by the Amendment Act of 1976 with a view to making detailed" provisions regarding counter-claim and, thus, the legislature could not be obvious of the discretion given to the Court in Rule 6 in allowing the filing of the. set-off even at a stage subsequent to the one prescribed therein, and when no such discretion was allowed by the legislature to the Court in Rule 6-A, its intention is very much manifest in debarring the defendants to file the counter-claim after the stage prescribed therein. Thus, when the written statement has already been filed by the defendants arid they did not file their counter-claim in that written statement, they cannot be allowed to do so after the filing of the written statement even by way of introducing an amendment therein so as to cover their counter-claim. Kashi Biswanath Dev v. Paramananda Routrai and others AIR 1985 Ori 260 (at page 263) (1) also took the same view by holding as under :-