ORDER
Arun Kumar, J.
1. The appellant/defendant is aggrieved by the impugned order dated 23rd July, 2001 by which he learned Single Judges had dismissed his application under Order 6 Rule 17 read with section 151 of the Code of Civil Procedure for amendment of the written statement so as to include a prayer for set off. The appellant/defendant is contesting a suit field by the respondent for the recovery of money on account of execution of some work in terms of an agreement dated 22nd July, 1993. By way of amendment of the written statement the appellant/defendant seeks to raise a plea of set on account of risk purchase i.e., it had to get the work done through another contractor at a higher cost and as such he is entitled to the difference in the amount that was payable to the respondent/plaintiff in terms of the agreement and the amount actually paid by the appellant/defendant to another contractor. In addition to the claim for set off on account of risk purchase the appellant/defendant also proposes to claim damages for delay in the completion of the work in terms of the original contract with the respondent/plaintiff. The appellant/defendant pleads that in the original written statement the set off was not claimed but the facts required for establishing the set off were pleaded. Learned Single Judges was of the view that the proposed amendment to raise the plea of set off is highly belated inasmuch as the plea ought to have been raised at the first hearing of the suit in terms of Order 8 Rule 6 of the Code of Civil Procedure According to he learned Single Judge, no case was made out for condoning the delay in raising the plea of set off which was clearly barred by limitation. It was pointed out that the suit was filed on 3rd of January, 1995 and the appellant/defendant had filed his written statement on 17th of November, 1995. The present application for pleading the set off was, however, filed on 18th of February, 2000 i.e. after about a delay of four years and three months.
2. The learned counsel for the appellant has relied upon and IT is true that the law relating to amendments commends a liberal approach and no party is to be deprived of its lawful claim on technical grounds only but in a case where the prayer appears not to have been made bona fide and the applicant is found to be sleeping over his claim for years together, no indulgence can be shown especially when it appears to be dilatory tactic.
3. Order 8 Rule 6 of the Code of Civil Procedure read with section 3(2)(b) of the Limitation Act, 1963 carves out an exception and in a way extends the period of limitation for a claim of set off. A claim based on set off, even if raised beyond limitation, gets protected as it is deemed to have been raised on the same date on which the suit is filled in which the set off is being pleaded. This protection is not at all available to a counter claim for which the limitation has to be computed from the date on which the counter claim is made in the court. The plea of set off, therefore, has to be raised strictly in terms of order 8 Rule 6 of the Code of Civil Procedure which says hat a claim for set off against the plaintiff’s demand has to be made tat the first hearing of the suit but not afterwards unless permitted by the court. The discretion of the court for permitting the set off afterwards has to be exercise judicially and on valid grounds. In the present case, the appellant/defendant has nowhere explained the reasons for delay in raising the plea of set off nor has made out any ground in his application to invoke the discretion of the court for permitting this peas to be raised at such a belated stage. It may also be mentioned that the plea of set off was raised after the appellant’s application for raising a counter claim on the same grounds was dismissed by learned Single Judges vide orders dated 2nd of February, 2000. That order was not appealed against and has already become final.
4. This court is, therefore, satisfied that the amendment application to raise a plea of set off was not only highly belated by also mala fide and as such the learned Single Judge was justified in rejecting the same on the ground that it was a dilatory tactic as well as belated plea to raise a claim which was beyond limitation. It appears that the appellant/defendant when confronted with the bar of limitation in regard to his counter claim has chosen to convert the same cause of action into a plea of set off. The courts must spurn such tactics.
5. Another aspect which disentitles the appellant to seek set off is that a set off is normally for an ascertained sum as per provisions of Order VIII Rule 6 C.P.C. In the present case, the appellant wants to claim set off for claims which are to be adjudicated upon on evidence. Set off is being claimed on account of risk purchase and damages for alleged delay in execution of work. Such claims cannot be said be claims ascertained sums of money. Therefore, even on merits, a claim for set off cannot be entertained.
6. We find no good grounds for interfering with the impugned order passed by the learned Single Judges. The appeal, therefore, stands dismissed in liming.