Schaefco International And Ors. vs Hdfc Bank And Ors.

S.N.H. Zaidi, J

Heard parties counsel on admission. This appeal has been directed against the order dated 17.12.2012 of the DRT-II, Delhi passed in O.A. No. 152/2011 whereby I.A. No. 588/2012 filed by the defendant/appellant for taking the counter-claim on record has been dismissed and the counter-claim has not been received. Mr. Nabi submits that the learned Tribunal below has refused to receive the counter-claim mainly on the ground that it was filed subsequent to the filing of the written statement, but it has failed to see that a counter-claim can be set up even after the delivery of the defence if the cause of action to the counter-claim had accrued prior to the delivery of defence. He further contends that the Tribunal below has erred in observing that the provocation to the filing of the counter-claim had come after the bank had started taking measures under the SARFAESI Act, as the bank had issued the demand notice under section 13(2) of the said Act on 23.2.2011, i.e., much prior to the filing of the concerned O.A. on 17.6.2011. He points out that the bank while filing the O.A. had also filed its evidence along with it, but after the written statement was filed by the defendant/appellants on 23.12.2011, it took several months in exhibition of its documents. He contends that the cause of action for the counter-claim had accrued to the defendants prior to the delivery of the defence and has relied upon the judgment of the Supreme Court in Mahendra Kumar and Anr. v. State of Madhya Pradesh and Ors. AIR 1987 (SC) 1395, where in the last but one paragraph, the Hon'ble Apex Court has held that:

The next point that remains to be considered is whether Rule 6A(1) of Order VIII of the Code of Civil Procedure bars the filing of a counter-claim after the filing of a written statement. This point need not detain us long, for Rule 6A(1) does not, on the face of it, bar the filing of a counter-claim by the defendant after he had filed the written statement. What is laid down under Rule 6A(1) is that a counter-claim can be filed, provided the cause of action had accrued to the defendant had delivered his defence or 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.....

He further contends that section 19(8) of the RDDBFI Act being pari materia to Rule 6A of Order VIII of the CPC, the aforesaid proposition of law laid down by the Supreme Court applies to this case and the Tribunal below has committed error in refusing to receive the counter-claim of the defendant/appellants.

Mr. Kunal Tandon, on the other hand, submits that the cause of action for the alleged counterclaim had not accrued to the defendants prior to the filing of the written statement by them but had accrued subsequent thereto and as such the counter-claim, which was filed, after about eight months of the delivery of defence, when the measures were taken by the bank under the SRFAESI Act during that period and the below has rightly exercised its discretion in refusing to receive the same. He further contends that five persons were arrayed as defendants in the counterclaim besides alleging the fraud and the counter-claim for damage was to be quantified, which could be done only in a separate suit and not by way of counter claim.

Having heard the submissions of the parties' counsel as well as going through the order impugned and perusing the record, I am of the view that the learned Tribunal below has considered the facts and circumstances of the case as well as the relevant law qua the counter-claim in the correct perspective and the order impugned does not appear to be suffering with any infirmity or illegality anti as such it does not warrant any interference by this Tribunal.

A perusal of the record would show that after the tiling of the written statement by the defendant appellants on 23.12.2011, the O.A. remained posted for exhibition of documents filed by the bank and on 31.7.2012 the defendant/appellants had filed its evidence and thereafter on 6.8.2012 it had filed the counter-claim along with I.A. No. 588/2012 for taking the counter-claim on record. The Hon'ble Supreme Court while interpreting Order VIII CPC on counter-claim in Ramesh Chand Ardawatiya v. Anil Panjwani AIR 2003 (SC) 2508, in para 28 has held that:

Looking to the scheme of Order VIII, as amended by Act No. 104 of 1976, we are of the opinion, that there are three modes of pleading or setting up a counter-claim in a civil suit. Firstly, the written statement filed under Rule 1 may itself contain a counter-claim which in the light of Rule 1 read With Rule 6-A would be a counter-claim against the claim of the plaintiff preferred in exercise of legal right conferred by Rule 6-A. Secondly, a counter-claim may be preferred by way of amendment incorporated subject to the leave of the Court in a written statement already filed. Thirdly, a counter-claim may be filed by way of a subsequent pleading under Rule 9. In the latter two cases the counter-claim though referable to Rule 6-A cannot be brought on record as of right but shall be governed by the discretion vesting in the Court, either under Order VI Rule 17 of the CPC if sought to be introduced by way of amendment, or, subject to exercise of discretion conferred on the Court under order VIII Rule 9 of the CPC if sought to be placed on record by way of subsequent pleading. The purpose of the provision enabling filing of a counter-claim is to avoid multiplicity of judicial proceedings and save upon the Court's time as also to exclude the inconvenience to the parties by enabling claims and counter-claim, that is, all disputes between the same parties being decided in the course of the same proceedings. If the consequence of permitting a counter-claim either by way of amendment or by way of subsequent pleading would be prolonging of the trial, complicating the otherwise smooth flow of proceedings or causing a delay in the progress of the suit by forcing a retreat on the steps already taken by the Court, the Court would be justified in exercising its discretion not in favour of permitting a belated counter-claim. The framers of the law never intended the pleading by way of counter-claim being utilized as an instrument for forcing upon a reopening of the trial or pushing back the progress of proceeding. Generally speaking, a counter-claim not contained in the original written statement may be refused to be taken on record if the issues have already been framed and the case set down for trial, and more so when the trial has already commenced....

The learned Tribunal below relying upon the aforesaid judgment has rightly observed that the reception of the counter-claim would be prolonging the trial of the O.A., complicating the otherwise smooth flow of proceedings and causing delay in the progress of the O.A. by forcing a retreat on the steps already taken by the Court and, therefore it would not be justified in exercising the discretion in favour of taking a belated counter-claim. Looking to the facts and circumstances of the case, I fully agree with the above view of the Tribunal below and in view of the above, this appeal does not appear to have any force and fails. Appeal is accordingly dismissed without there being any order as to cost.