Swaran Singh & Company vs Punjab National Bank

A.L.Bahri, J.—This revision is directed against order dated September 1, 1990 passed by Senior Sub judge, Jalandhar, dismissing application filed by the defendant under Order 6''rule 17 of the Code of Civil Procedure to amend the counter claim.

Punjab National Bank filed a suit for recovery of little more than Rs. 27,00,000/ against M/s. Swaran Singh & Co. and others on thebasis of the loan advanced. It was in the written statement that the defendant, in October 1986, claimed damages on account of breach of the contract. It was stated therein that the damages were to the tune of Rs. 15,55,000/. However, the claim was restricted to Rs. 8,00,000/ and the courtfee was paid thereon. Breach of contract on the part of the plaintiffBank was stated to have been committed in 1984. It was subsequently at the evidence stage that the present application under Order 6 Rule 17 of the Civil Procedure Code was filed by the defendant that he be allowed to claim Rs. 15,00,000/ as damages in the counterclaim and allowed to pay courtfee thereon. This application was opposed and finally dismissed by the impugned order.

Shri Hemant Kumar, Advocate for the petitioner, has argued that virtually his prayer was for extension of time for payment of deficient courtfee on the counterclaim and the court should have exercised jurisdiction under section 149 of the Civil Procedure Code.

On the other hand Shri H.N. Mahtani, Advocate appearing on behalf of the Bank has argued that provisions of Section 149 of the Code of Civil Procedure are not attracted to the case in hand and the defendant wanted to amend the counterclaim under Order 6 Rule 17 of the Civil Procedure Code and he was not entitled to get it amended with respect to the claim which had been abandoned. He has referred to the provisions of Order 2 Rule 2 of the Civil Procedure Code in this context that if the claim was abandoned, no subsequent suit can be filed for the same and even amendment of the claim, cannot be permitted.

After hearing counsel for the parties I do not find any merit in the contention of counsel for the petitioner. When the counterclaim was made it was restricted to only Rs. 8,00.000/ and courtfee thereon was paid. It amounted to abandonment of the remaining claim which was stated to be Rs. 15 lacs and odd. A perusal of Order 2 Rule 2 of the Civil Procedure Code would show that if part of the claim was intentionally relinquished thereafter no suit can be filed to recover the same. The contention of the counsel for the petitioner that Order 2 Rule 2 of the Civil Procedure Code will not be applicable as no fresh suit is being filed, cannot be accepted, the principle under Order 2 Rule 2 of the Civil Procedure Code appears to be that no further claim can be made, if the same was relinquished. In the present case it is not the question of filling a separate suit as the defendant is claiming damages in a counterclaim. If he cannot file a separate suit for the relinquished amount, obviously he cannot get the same relief by amendment of !he counterclaim. This matter was considered by the Privy Council in Mohammad Khalil Khan v. Mahbub Ali Kian and others, AIR 1949 PC 78L which has been relied by the trial Court. There is no ground to interfere with the impugned order. The revision petition is dismissed with no order as to costs.