ORDER
S.K. Mahajan, J.
IA. No. 11923/99
1. This order will dispose of the application of the defendant for amendment of the written statement filed under Order 6, Rule 17 read with Section 151 of the Code of Civil Procedure. The facts in short which are relevant for purposes of deciding this application are :-
2. That the plaintiff company had carried out certain interior works, furniture and furnishing, etc. for the defendant at its office if Gurgaon
in the State of Haryana. According to the plaintiff, though it had executed work to the tune of Rs. 13,30,933/- but the defendant failed to make any payment and the plaintiff was, therefore, entitled to the aforesaid amount besides certain other reliefs as have been claimed in the suit.
3. Notice of the suit having been given to the defendant, it filed the written statement. The stand taken in the written statement was that though the contract value was over Rs. 77 lacs, the plaintiff did not execute any work and the work was got executed from other agencies at the risk and cost of the plaintiff. It is also stated that the defendant had incurred a total sum of Rs. 80,727.55 paise in getting the work executed from the other agency whereas the value which would have been payable to the plaintiff, had the work been performed by it, was Rs. 69,16,023.35 paise. It is, therefore, alleged in the written statement that the defendant was entitled to recover from the plaintiff by way of damages the extra amount incurred in getting the work done at the risk of the plaintiff as under :-
(i) Value of total job performed Rs. 70,19,328.31 by M/s. Office Equipment
(ii) Supervision charges @ 15% Rs. 10,52,899.24 in terms of Clause 7.0.9.0 of the General Conditions of Contract
Rs. 80,72,227.55 Less:
(i) Value that would have been Rs. 69,16,023.35 payable to plaintiff had it performed the same job BALANCE Rs.11,56,204.20
4. Besides the aforesaid damages, it is alleged that the defendant was entitled to liquidated damages for delay in completion of the work and such damages have been assessed at 10% of the total value of the work. The total of Rs.19,33,370.40 paise was thus allegedly liable to be paid by the plaintiff to the defendant. Except stating in the written statement that the defendant was entitled to the aforesaid amount from the plaintiff, the defendant has not made any other plea in the written statement nor any counter claim has been made.
5. The suit was filed on 3rd January, 1995 and written statement was filed by the defendant on 17th November, 1995. Almost four years after the filing of the written statement, this application has been filed by the defendant for amendment of the written statement. It is stated in the application that though it has been stated in the written statement that the defendant was entitled to claim damages not only on account of the work having been got executed from other agency at the risk and cost of the plaintiff but also on account of the delay in getting the work executed from the other agency, the defendant has inadvertently not made counter claim of passing a decree for the aforesaid amount of Rs.19,33,370.40 paise. The defendant, therefore, states in the application that it was only by way of inadvertence and oversight that the defendant has failed to make a counter claim, though all necessary averments and facts in support of such claim and the cause of action to make such claim had been duly made in the written statement. It, therefore, wanted to amend the written statement so as to add a relief regarding the passing of a decree for Rs.19,33,370.40 paise alongwith interest in favour of the defendant and against the plaintiff.
6. The application is opposed by the plaintiff. It is stated that under Order 8, Rule 6(a) CPC, the defendant could make a counter claim either before or after filing of the suit but before the defendant had delivered his defense or before the time limit for delivering his defense has expired whether such counter claim was in the nature of damages or not. It is, therefore, stated that the counter claim having not been made in accordance with the provisions of Rule 6(a) or Order 8 CPC, the defendant could not make such a claim. The second objection taken for not allowing the amendment is that by the amendment the defendant is now seeking this Court to pass a decree for an amount, recovery of which has become barred by time. It is, therefore, stated that a valuable right has accrued in favour of the plaintiff and the counter claim being barred by time, the amendment should not be allowed.
7. Insofar as the first objection is concerned, in my opinion, it was only an irregularity by not making a counter claim alongwith the written
statement. In my opinion, this does not mean that in case the counter claim is not made simultaneously with the filing of the written statement, the Court cannot allow any amendment so as to permit the defendant to make a counter claim, provided such a counter claim was not barred by time. In my opinion, therefore, there is no force in the argument of learned counsel for the plaintiff that the procedure adopted by Rule 6(a) of Order 8 CPC having not been followed, the defendant cannot, at this stage, make a counter claim.
8. Under Section 3 of the Limitation Act any claim by way of a set off or a counter claim is treated as a separate suit and is deemed to have been instituted on the date on which the counter claim is made in Court. Faced with the provisions of Section 3 of the Limitation Act, Mr. Kaura submits that as all the facts and the cause of action leading to the filing of the counter claim having already been stated in the written statement, the provisions of Section 3 of the Limitation Act will not be applicable in the facts and circumstances of the case. He has relied upon the judgments reported as A.K. Gupta and Sons Vs. Damodar Valley Corporation, and Surendar Kumar Gupta and Others Vs. H.L. Sehgal, 1986 (2) DRJ 178.
9. In A.K. Gupta and Sons Vs. Damodar Valley Corporation, (supra), it was held that in the matter of allowing amendment of pleading the General Rule is that a party is not allowed by amendment to set up a new case or a new cause of action particularly when a suit on the new cause of action is barred. Where, however, the amendment does not constitute the addition of a new cause of action or raise a different case, but amounts merely to a different or additional approach to the same facts the amendment is to be allowed even after the expiry of the statutory period of limitation. Strong reliance has been placed upon the observations of the Court in paragraphs 7 and 11 of the judgment which are in the following terms :-
“7. It is not in dispute that at the date of the application for amendment, a suit for a money claim under the contract was barred. The General Rule, no doubt, is that a party is not allowed by amendment to set up a new case or a new cause of action particularly when a suit on new case or cause of action is barred: Weldon Vs. Neale, (1887) 19 QBD 394. But it is also well recognised that where the amendment does not constitute the addition of a new cause of action or raise a different case, but amounts to no more than a different or additional approach to the same facts, the amendment will be allowed even after the expiry of the statutory period of limitation.
11. This, therefore, seems to us to be pre-eminently a case for allowing the amendment. The authorities also lead us to the same view In L.J. Leach and Co’s case, , a suit for damages for convention was by amendment allowed to be converted into a suit for damages for breach of contract after that claim had become barred, the necessary facts, as in the case in hand being already in the plaint. In Charan Das’s case, 47 Ind App 255; (AIR 1921 PC 50) an amendment adding a claim for possession after a suit for such claim had become barred was allowed in a suit which originally had only claimed a declaration of a right to preempt. In the last mentioned case, the plaintiff had in spite of warning at the earliest stage refused to make the amendment which he later sought and got. It was, therefore a case where the plaintiff had initially deliberately refused to make a claim and an amendment being allowed later permitting that claim to be raised after it had become barred. It was in a sense a stronger case than the present one where the plaintiff had omitted to make the claim initially on a wrong notion and a wrong legal advice. Punishing of mistakes is, of course, not administration of justice.”
10. In that case amendment was allowed even in a case where a suit as on the date of amendment was barred by time.
11. In Surendar Kumar Gupta and Others Vs. H.L. Sahgal (supra), this Court relying upon the observations of the Supreme Court in A.K. Gupta and Sons Vs. Damodar Valley Corporation, (supra) has also held that where originally the plaintiff had claimed a decree for Rs. 13,000/- only and by way of amendment wanted to add an additional relief, namely, decree for the return of the machines in the original working condition or in the alternative a decree for Rs. 24,000/- i.e. the value of the machines, the Court could allow the amendment even though the suit for return of machines or in the alternative for a decree for damages was barred by time.
12. It was held by the Supreme Court as well as by this Court in the aforesaid judgments that as a general rule no doubt a party is not allowed, by amendment, to set up a new case or a new cause of action particularly when suit on the new cause of action is barred. Where, however, the amendment does not constitute the addition of a new cause of action or raise a different case, but amounts merely to a different or additional approach to the same facts the amendment is to be allowed even after the expert of the statutory period of limitation. The question for determination, therefore, is whether the plaintiff had made out a special circumstances for allowing this amendment. If the facts constituting the cause of action for the additional claim sought to be introduced by way of amendment, already existed in the plaint are originally filed, there was no difficulty in allowing the amendment.
13. In my view, the law as laid down by the Supreme Court and this Court in the aforesaid judgments will not be of any assistance to the defendant. In those cases, the suit had been filed by the plaintiff and all the facts and causes of action which were required to be pleaded for getting the relief originally claimed in the suit, had been made in the plaint. Additional or alternative prayer was sought to be made in those suits and it was under these circumstances that the Courts held that in case all the facts and the cause of action for granting the relief which have been claimed have already been pleaded, the Court may allow an amendment which may be barred by limitation. In the case before the Supreme Court, the amount of the claim which was sought to be made by way of amendment was mentioned in the plaint and the defendant had notice of the same. In fact in the written statement, the defendant had specifically expressed its willingness to pay the appellant’s legitimate dues which could only mean such amount as might be due according to the rates applicable on a proper interpretation of the clause. The respondent in that case was fully aware that the ultimate object of the appellant in filing of the suit was to obtain the payment of that amount. It was equally aware that the amount had not been specifically claimed in the suit because the respondent had led the appellant to believe that it would pay whatever the Court legitimately found to be due. The defendant in fact said so in the written statement. It was in these circumstances that the Court held that “if there was any case where the respondent was not entitled to the benefit of the law of limitation, the present is that one. The respondent cannot legitimately claim that the amendment will prejudicially affect his right under that law for really he had no such right. It is a case in which the claim for money was in substance in the plaint from the beginning though it had not formally been made”.
14. As already mentioned above, under Section 3 of the Limitation Act, any claim by way of a set off or a counter claim has to be treated as a separate suit and will be deemed to have been instituted, in the case of a counter claim on the date on which a counter claim was made in Court. It is, therefore, clear that the counter claim is treated as a suit. A suit if filed on the date when a counter claim was made, as in the present case, will be clearly barred by time. There is no provision in law which could condone the delay in filing a suit which has become barred by time. In case, delay in filing a suit cannot be condoned, in my opinion, by way of amendment, the Court cannot make a counter claim within time in case a suit if filed would have been beyond the period of limitation. It is not a case where a suit had already been filed by the plaintiff and he wanted to add an additional or alternate prayer in that suit. It is a case where for the first time a decree is being claimed by way of a counter claim for an amount recovery of which has clearly become barred by time.
15. In Gwalior Rayons Silk Mgf. Company Limited Vs. Ramadas, 1987 (2) Kerala Law Times 1035, it was held that the facts constituting the counter claim were already there in the original written statement, is no answer to the plea that the counter claim would be barred by time. That Might be a ground to argue that what is sought to be inserted by amendment is not a new or inconsistent plea but one based on the original averments. But in order to make it an enforceable counter claim enabling the Court to adjudicate upon it as a cross suit and pronounce judgment upon it in the same suit as provided in Rule 6A(2) of Order VIII after allowing the plaintiff to file a written statement as provided in sub-rule (3) of Rule 6A, there must be a specific statement in the written statement as provided in Rule 6B of Order VIII that he is doing so by way of counter claim and there must be payment of Court fee also. Then only it could be treated as a plaint and governed by the rules applicable to plaints as enjoined by Order VIII, Rule 6A(4). Without doing any of these things if the written statement merely states that no amounts are due to the plaintiff but amounts are only due from him that could be taken only as a mere statement of fact and not treated as an enforceable claim that could be adjudicated upon.
16. In my view, therefore, the recovery of the amount having become barred by time as on the date when application for amendment was made, the defendant cannot be permitted to amend the written statement so as to make a counter claim for recovery of the said amount. It will amount to circumventing the provisions of the Limitation Act. The application, in my view, cannot, therefore, be allowed and the same is, accordingly, dismissed.
Suit No. 2/95
17. Matter be now listed before the Joint Registrar on 21st February, 2000 for further proceedings.