(1) IN the present revision petition, order of the trial Court partly declining the prayer of the petitioner to amend written statement is being impugned.
(2) NEW Bank of India filed a suit for recovery of more than Rs. four lacs against the petitioner and respondent No. 2 to 5 who were defendants in the suit. The suit was filed on the ground that on asking of the defendants, petitioner opened a letter of credit limit for import of Acrylic fibre from Japan, with an undertaking to retire the documents on arrival and on execution of D. P. note to the extent of Rs. 2 lacs with an undertaking to repay the amount with interest at the rate of 15 per cent. Defendants No. 1 to 3 i e. Kohinoor Hosiery Mills and its partners, filed written statement in which they admitted having opened a letter of credit limit with the plaintiff bank, but denied their liability to pay the suit amount Plaintiffs led evidence in support of their case. When the case was fixed for evidence of the defendants, an application was filed, seeking permission of the Court to amend written statement. In the applications, which was allowed being formal in nature The other amendment sought was refused by the trial Court on the ground that if the same is allowed, it would permit the defendants to set up a new case and that would lead to re trial of the case. This order is being challenged in the present revision petition.
(3) MR. M L Sarin, Sr. Advocate counsel for the petitioner, referred to the pleadings as well as to the averments made in the application seeking amendment of the written statement and contended that there was no delay in filing the application. With regard to amendment he stated that no prejudice is going to be caused to the plaintiff if the defendants are allowed to amend their written statement. During the course of his arguments, he placed reliance upon a judgment of Supreme Court in Jai Jai Ram Manohar Lal v. National Building Material Supply Gurgaon, A. I. R. 1969 S C. 1267. , judgment of Supreme Court in Suraj Prakash Bhasin v. Smt Raj Rani Bhasin, A. I. R. 1981 S. C. 1485 judgment of this Court in Smt. Harjit Grewal and Ors. v. Dr. Vinod Kumar Batra, (1991-2) 100 P. L. R. 326, and judgment of this court in Bank of India v. Jagat Singh HUF, (1991-2) 100 P. L. R. 515.
(4) IN reply to this, Mr. R. K. Aggarwal, Advocate, counsel for the Bank, submitted that the impugned order calls for no interference. According to him, by the proposed amendment, the defendants are seeking to set up a counter claim for the recovery of damages and that claim being barred by time, cannot be allowed to be set up by way of amendment. He also contended that if the proposed amendment is allowed, it would reopen the entire case.
(5) AFTER hearing learned counsel for the parties, I am of the view that there is no merit in this revision petition There is no dispute with the proposition of law as submitted by Mr Sarin that amendment can be allowed at any stage of the proceedings and that delay in making application is not sufficient to reject it. It is equally true that the Courts are more liberal in permitting amendment of the written statement as amendment of the written statement stands on a different footing, compared to that of amendment of plaint. But at the same time, the Court cannot by way of amendment allow the defendants to substitute one distinct cause of action for the other. By the proposed amendment petitioners seek to set up an arrangement alleged to have been arrived at by the Bank, defendants and one Surya Exports. According to the defendants, under the said arrangement, the Bank had agreed to negotiate the documents of export under the letter of credit pertaining to M/s. Surya Exports, who was to export blankets manufactured by Kohinoor Hosiery Mill? against the said letters of credit. Further according to defendants No. 1 to 3, the Bank subsequently committed breach of the arrangement and they suffered damages to the tune of Rs. 10 lacs. The other proposed amendment was that the bank was responsible for the black listing of the firm by the Reserve Bank of India and that because of the black listing, the firm suffered damages. The breach of arrangement is stated to have been committed somewhere in the year 1982 whereas black listing was done in the year 1985. The arrangement now alleged, was to the knowledge of the defendants, but in the written statement, no mention or reference of the same has been made. Application for amendment of the written statement was filed on 20-11-1991 and that too after the closure of the evidence of the bank. M/s. Surya Exports is not even a party to the present suit. If the petitioner is allowed to amend the written statement, that would be permitting the petitioner to set up entirely a new case. Otherwise also, I find that the counter claim now proposed to be set up by way of amendment of the written statement is not within limitation Order 8 Rule 6 (A) (1) of the Code of Civil Procedure provides for the setting up of counter claim by the defendants, The defendant can file counter claim even after filing of the written statement, provided that the cause of action had accrued to the defendant before the defendant had delivered his defence before the time limited for delivering his defence has expired, whether such counter claim is in the nature of a claim for damages or not Under Article 113 of the Limitation Act, the period of limitation of three years from the date the right to sue accrues has been provided for any suit for which no period of limitation is provided elsewhere in the Schedule. The counter claim proposed to be set up is a claim for damages and limitation for such suit would be three years as provided under Article 113 of the Limitation Act. Under Section 3 (2) (b) (ii) of Part II of the Limitation Act, the counter claim is to be treated as a separate suit on the date on which the counter claim is made in Court. In the present case, application for amendment of the written statement was made on 20
Please Login To View The Full Judgment!
-11-1991. The breach of arrangement, as pleaded by the petitioner, was committed in the year 1982 and the firm was black listed in the year 1985. If it is taken that cause of action accrued in the year 1982 or in 1985, the suit would be barred in 1985 or in 1988. Thus, on 20-11-1991 when the application for setting up of a counter claim was made, the suit was hopelessly barred by time. In these circumstances, the trial Court was right in partly dismissing the application for amendment of the written statement (6) FOR the reasons recorded above, this revision petition is dismissed. No costs. Parties are directed to appear before the trial Court on 24-8-193.