Calcutta High Court (Appellete Side)
Tarit Bhowmik & Anr vs Mukul Day on 7 March, 2014
Author: Jyotirmay Bhattacharya
Bench: Jyotirmay Bhattacharya
1
07.03.2013.
s.m
F.A.T No.123 of 2010
C.A.N 11740 of 2013
C.A.N 1255 of 2013
Tarit Bhowmik & Anr.
-Vs-
Mukul Day
Mr. A. C. Kar,
Mr. Debasish Roy,
Mr. Bijan Datta,
Mr. Kaushik Das,
Mr. Dulal Chandra Pal.
...For the Appellants.
Mr. Saptansu Basu,
Mr. Purnasis Roy.
...For the Respondent.
Re: C.A.N 1255 of 2013 This application was filed by the plaintiff/respondent praying for early hearing of the appeal. Since the appeal has already reached the hearing stage in usual course and the appeal has also been taken up for hearing, no further order need be passed on this application.
The said application is thus, deemed to be disposed of.
Re: C.A.N 11740 of 2013
This application was taken out by the
defendants/appellants to amend their prayer for Specific Performance of Contract which they introduced in the suit by way of counterclaim for incorporating therein an additional relief for refund of the full consideration amount paid in connection 2 with the said flat amounting to Rs.13,50,000.00 (Rupees thirteen lakh fifty thousand) only and refund of the excess amount of Rs.4,40,500.00 (Rupees four lakh forty thousand and five hundred)only paid to the plaintiff/respondent with interest, in case decree for Specific Performance of Contract as prayed for by the defendants/appellants in their counterclaim, is refused.
Initially the defendants/appellants in their counterclaim prayed for Specific Performance of Contract in respect of the 1st Floor hall at premises No. 60-A, Surya Sen Street, Kolkata, and for refund of the excess amount of Rs.4,40,500.00 (Rupees four lakh forty thousand five hundred) only which, according to the defendants/appellants, was paid to the plaintiff/respondent in excess of the consideration amount agreed to be paid for the said hall. The counterclaim which was so filed by the defendants/appellants was ultimately dismissed by the Learned Trial Judge and the decree for recovery of possession which was prayed for by the plaintiff/respondent against the said defendants/appellants in his suit was granted in favour of the plaintiff/respondent upon declaration of his title in the said suit.
Being aggrieved by and dissatisfied with the said judgment and decree passed by the Learned Trial Judge in the said suit, the instant appeal was filed by the defendants/appellants. In course of hearing of this appeal the instant application was taken out by the defendants/appellants praying for amendment of their counterclaim for introducing the additional relief as mentioned above in the said suit.
3Mr. Basu, Learned Senior Counsel, appearing for the plaintiff/respondent opposes such prayer of the defendants/appellants for amendment of their pleading. He contends that no explanation has been given by the defendants/appellants as to why such amendment could not be sought for before commencement of the trial of the suit. He further contends that in the absence of such explanation the defendants'/appellants' prayer for amendment of their counterclaim cannot be allowed at this stage of the appeal in view of the proviso added to order 6 Rule 17 of the Code of Civil Procedure.
After hearing the Learned Advocates for the parties and considering the materials on record and particularly in view of the provision contained in Section 22 of the Specific Relief Act, 1963, we feel that the relief which the defendants/appellants have claimed in this application cannot be denied as the provision contained in Section 22 of the said Act provides that no relief which the defendants/appellants intends to introduce by way of amendment can be granted unless such relief is specifically claimed in the suit.
We, however, do not find any substance in the aforesaid contention of Mr. Basu, as Section 22 of the Specific Relief Act which starts with a non- obstantive Clause excludes the operation of the Civil Procedure Code, while applying for amendment of the counterclaim of like nature by the defendants/appellants under Section 22 of the Specific Relief Act. In our considered view Section 22 of the Specific Relief Act is an independent provision which recognizes the unfettered right of the defendants/appellants to amend their pleading 4 for introducing the relief for refund of the earnest money and/or consideration money paid to the vendor, in case relief for Specific Performance of the Contract is denied. As such court has no option but to allow the defendants'/appellants' such prayer for amendment of counterclaim in the instant case.
The application for amendment is thus, allowed.
The concerned department is thus, directed to amend the counterclaim of the defendants/appellants in their said application.
Hearing is concluded, judgment is reserved.
(Jyotirmay Bhattacharya, J) (Ishan Chandra Das, J)