Debt Recovery Appellate Tribunal - Madras
N.B. Prakash (Late) vs Canara Bank on 6 August, 2002
Equivalent citations: II(2003)BC62
ORDER
A. Subbulakshmy, J. (Chairperson)
1. The 5 defendant filed IA-21 putting forth his counter-claim and contended that appellant must be permitted to file his counter-claim. The applicant-Bank filed objections stating that the counter-claim is not maintainable and it was filed after a lapse more than five years from the date of filing the written statement and evidence was also recorded and 4th defendant has given the evidence on behalf of all the defendants and the petition is filed only to drag on the proceedings.
2. The application was heard by the learned Presiding Officer, Debts Recovery Tribunal (DRT), Bangalore and he dismissed the petition holding that the counter-claim is barred by time. Aggrieved against that order the appellant has come forward with this appeal.
3. The Counsel for the appellant submitted that Section 19(8) of the Act permits for filing of counter-claim and accordingly the appellant has filed counter-claim by paying necessary Court fee and even though the written statement was filed in the 1996, the counter-claim had been filed only on 13.4.2000 since only after the amendment dated 17.1.2000, the defendant was permitted to file the counter-claim and immediately after the amendment of the Act the appellant filed the counter-claim and so the counter-claim filed must be taken on file.
4. The Counsel for the respondent Bank submitted that the counter-claim is a time-barred debt and it cannot be allowed and he further contended that the written statement in this case was filed on 23.9.1996, evidence was taken and the evidence was also closed, and after filling the written statement the defendants did not take any steps to file the counter-claim and even though there was no provision under the Act originally for filing counter-claim the appellant ought to have filed the case in Civil Court with regard to this counter-claim then only it can be stated it is not time-barred and on the dale of filing the counter-claim it was time barred debt and as the defendants did not file counter-claim within time from the date of filing written statement the appellant should not be permitted to file the counter-claim and the order passed by the learned Presiding Officer, DRT, Bangalore is perfectly in order. He strenuously argued that the appellant cannot take advantage of the subsequent amendment which came in the year 2000 and contend that by virtue of the amendment the appellant is entitled to file the counterclaim even though it is time-barred.
5. The learned Presiding Officer, DRT, Bangalore, has found that the counter-claim is patently and undoubtedly barred by time and it cannot be allowed.
6. Admittedly the counter-claim is lime barred debt. The statement was filed in the year 1996 from the date of filing the statement the defendant did not come forward with the counter-claim within time and even in the statement the defendant did not raise anything with regard to counter-claim and he also did not reserve in the written statement filed his right for the counter-claim. After filing the written statement in the year 1996 the appellant kept quiet and filed the counter-claim only in the year 2000. The counter-claim is clearly a time barred debt. The Kerala High Court in 1987(2) K.L.T. 1035 has observed that--
"If the cause of action and the claim in a plaint presented before Court is barred by the law of limitation the Court cannot proceed with the suit and the Court is not bound to issue process. I have already stated that a counter claim is just like plaint in a cross-suit and it must be deemed to have been instituted on the date on which the counter-claim is made in Court. That means if the cause of action or the claim is barred by limitation on the date on which the counter-claim is made in Court the Court cannot entertain the same".
In I (2001) Bank Cases 12 (DRAT/DRT), this DRAT has held that the amendment to DRT Actcamc into effect on 17.1.2000 permitting the defendant to file counter-claim and that does not mean an amendment of claim, if any, which is clearly, patently and undoubtedly barred by time can be allowed. The appellant is not entitled to take shelter under the amendment by stating that only after amendment the appellant is entitled to file counter-claim and so it is not time-barred and the counter-claim being time-barred debt it cannot be allowed and the defendant cannot be permitted to file the counter-claim for time-barred debt. I concur with the view taken by the previous Chairperson. DRAT, Chennai. The counter-claim being time-barred debt the defendants should not be permitted to file the counter-claim which has been rightly decided by the learned Presiding Officer, DRT, Bangalore by dismissing the petition.
7. I find no error in the order passed by the learned Presiding Officer, DRT, Bangalore.
8. Appeal dismissed.