Punjab-Haryana High Court
Jagtar Singh vs Megh Raj on 17 February, 2012
Author: Jaswant Singh
Bench: Jaswant Singh
C.R.No.1611 of 2009 #1#
IN THE HIGH COURT FOR THE STATES OF PUNJAB AND
HARYANA AT CHANDIGARH
C.R.No.1611 of 2009
Date of Decision: 17.2.2012
Jagtar Singh
....Petitioner
Versus
Megh Raj
....Respondent
CORAM: HON'BLE MR. JUSTICE JASWANT SINGH Present: Mr. Amarjit Markan, Advocate for the petitioner.
Mr. S.S. Salar, Advocate for the respondent.
JASWANT SINGH, J By filing the present petition under Article 227 of the Constitution, defendant-petitioner has prayed for setting aside the impugned order dated 17.2.2009 passed by the learned Addl. Civil Judge (Sr. Divn.), Nabha whereby his application filed under Order 6 Rule 17 CPC for amendment of written statement has been dismissed.
Brief facts of the case are that the plaintiff-respondent filed civil suit for recovery under Order 37 CPC against the defendant- petitioner. Upon notice, the same was opposed and during the pendency of the suit, an application under Order 6 Rule 17 CPC was filed for amendment of the written statement but the same has been dismissed by the learned trial Court, hence the present revision petition.
Learned counsel for the petitioner argues that the price of crops for the year 19.10.1995 to 15.9.1998 amounting to Rs.6,93,048/-
C.R.No.1611 of 2009 #2# lying with the plaintiff in the capacity of a Commission Agent in a fiduciary capacity and the same can be adjusted by way of set off against the amount claimed by the plaintiff-respondent even if the same is time barred. It is further argued that such a plea can always be raised by the defendant and such a course is permissible under Order 8 Rule 6 CPC as the amendment is very much necessary for proper adjudication in controversy in view of judgment of this court reported as Milkha Singh v. Parshottam Dass 2007(1) RCR (Civil) 495.
On the other hand, this plea has been strongly opposed by learned counsel for the respondent. It is argued that the application has been filed just to prolong the matter and the civil suit filed under Order 37 CPC is unnecessarily being delayed for the last more than nine years on one pretext or the other. It is also argued that the plaintiff has filed the suit in an individual capacity and not by the Firm qua which the alleged transaction regarding set off relates.
A perusal of paper book reveals that the Civil Suit for recovery of Rs.5,54,400/- was filed on 8.5.2002. Initially, the defendant failed to put in appearance in time and he filed an application for condonation of delay for his appearance, which was allowed by the learned trial Court and thereafter he filed an application for leave to defend, which was allowed on 10.9.2004 by the learned trial Court. Issues were framed on 6.4.2005 and the plaintiff examined three witnesses in examination-in-chief on 25.5.2006.
The impugned order reveals that the defendant succeeded to C.R.No.1611 of 2009 #3# delay the matter by plea of their alleged compromise and on 23.5.2007, he cross examined only one PW and thereafter filed the present application under Order 6 Rule 17 CPC for amendment of the written statement on 27.7.2007 and the learned trial Court dismissed the application while observing as under:
"Now he wants to set up plea of set off of alleged dues of sale of his agricultural produce for the years 1995 to 1998. First of all, as per his own averments, such claim is time barred. Secondly, till date he has not taken such plea in his written statement. No such counter claim was filed by him. Considering these facts and circumstances the citations as relied upon the defendant/applicant are totally irrelevant. However, the citations as relied upon by the respondent/plaintiff are supporting his contentions. As per above discussion the application in hand is clearly as delay tactics. Hence the application under reference is dismissed being devoid of any merits."
Before proceeding with the matter further, it would be appropriate to reproduce Sub Rule (1) of Rule 6 of Order 8 CPC, which reads as under:
"Particulars of set-off to be given in written statement-(1) Where in a suit for the recovery of money the defendant claims the set-off against the plaintiff's demand any ascertained sum of money legally recoverable by him from the plaintiff, not exceeding the pecuniary limits of the jurisdiction of the Court, and both parties fill the same character as they fill in the plaintiff's suit, the defendant may, at the first hearing of the suit, but not after-wards unless permitted by the Court, presents a written statement containing the particulars of the debt sought to be set-off."
C.R.No.1611 of 2009 #4# A perusal of Sub Rule (1) hereinabove reveals that the defendant can claim the set off against the plaintiff in a suit for recovery of money filed by the plaintiff of any ascertained sum of money legally recoverable by him from the plaintiff. Thus, the existence of ascertained sum of money legally recoverable by defendant against the plaintiff is pre-requisite for invoking the provisions of Order 8 Rule 6 CPC. The phrase "legally recoverable" is not defined under the Code of Civil Procedure, 1908 but in view of the provisions of Limitation Act, 1963, a suit for recovery of money can be filed within three years from the date of cause of action.
So far as the judgment in Milkha Singh's case (supra) is concerned, the same is not helpful to the case of the petitioner as in that case, petitioner-Milkha Singh challenged the order passed by the learned Trial Court whereby his application filed under Order 6 Rule 17 CPC for amendment of written statement for claiming set off in respect of crop sold to the plaintiff was dismissed. In that case, plaintiff-respondent filed a suit for recovery on the basis of pronote, which was opposed by the defendant-petitioner by filing his written statement dated 12.8.2002. From the pleadings of parties, issues were framed on 10.9.2002. Thereafter, the plaintiff concluded his evidence on 14.10.2002 but the defendant despite availing sufficient opportunities did not conclude his evidence rather he filed an application on 14.5.2003 for amendment of written statement by raising the plea of set off for adjustment of price of winter crop for the year C.R.No.1611 of 2009 #5# 1999 but the same was dismissed on 24.1.2004 inter alia observing that the plea of set off in the written statement is time barred. But in that case, the plea of set off had already been made in the written statement filed on 12.8.2002 and there was no dispute that it was a case of fiduciary relationship between the parties but the other objection was that the claim of set off can be raised only on the first date of hearing and not at a later stage. After considering the matter at length, this Court came to the conclusion that where there is a specific bar of limitation and the same is apparent from the face of record, a prayer for amendment of pleadings is not to be allowed so as to take away an accrued right that has vested in the opposite party, however, where the question of Limitation is an arguable point, the same is to be considered in exercise of judicial discretion of the Court in view of the facts and circumstances of each case. It will be useful to reproduce the para 8 of this judgment, which reads thus:
"In the background of the above observations, it is evident that there is no straitjacket rule with regard to allowing or disallowing an application seeking amendment of the pleadings. The question whether an application seeking amendment of pleadings is to be allowed or not depends on the facts and circumstances of each case. The consensus of the judicial opinion which appears is that where there is a specific bar of limitation and the same is apparent on the face of the record a prayer for amendment of the pleadings is not to be allowed so as to take away an accrued right that had vested in the opposite party. However, where the question of limitation which is sought to be taken by way of amendment of the pleadings is an C.R.No.1611 of 2009 #6# arguable point, the question of allowing or disallowing the application for amendment is to be considered in exercise of judicial discretion of the Court depending on the facts and circumstances of each case and on judicial evaluation of the facts and circumstance in which the amendment is sought. Besides, where by allowing an application for amendment of pleading, the cause of justice is subserved and further litigation is avoided, the amendment sought for is to be allowed."
A perusal of paragraph 2 of the application (P.2) under Order 6 Rule 17 CPC for amendment of the written statement reveals that the price of crops for the year 19.10.1995 to 15.9.1998 amounting to Rs.6,93,048/- lying with the plaintiff allegedly advanced, is sought to be adjusted by way of equitable set off in the proposed amendment in the application (P.2) filed on 27.7.2007. A further perusal of paragraph 9 of the written statement filed on behalf of defendant- petitioner shows that the defendant-petitioner filed a suit No.250 dated 16.9.1999 for permanent injunction against the plaintiff-respondent to restrain from recovery of amount through coercive methods with the help of police but the same was subsequently dismissed as withdrawn. Thus, the defendant-petitioner had a cause of action in the year 1999 for recovery of the alleged sum due pertaining to the crop year from 19.10.1995 to 15.9.1998 as referred above but it seems that no action has been taken by the defendant-petitioner for the reasons best known to him. Therefore, at this stage, the same becomes hopelessly time barred and cannot be termed as legally recoverable to bring it within C.R.No.1611 of 2009 #7# the parameters of Order 8 Rule 6 CPC as well as in view of para 8 quoted above in Milkha Singh's case (supra). Even the defendant- petitioner himself has admitted that the amount, which is sought to be set off, is time barred but he is claiming as equitable set off, which is not permissible in view of the fact that the present case is covered under the purview of legal set off and not under equitable set off and the distinction between the two was taken note of by this Court in Milkha Singh's case (supra) from the commentary on CPC by Justice C.K. Thakker, which reads as under:
"Legal set-off and equitable set-off : Distinction Equitable set-off differs from legal set-off. The following are the points of difference between the two:
(a) Legal set-off must be for an ascertained sum of money. Equitable set-off may be allowed even for an unascertained sum of money.
(b) Legal set-off can be claimed as of right and the court is bound to entertain and adjudicate upon it. Equitable set-off, on the other hand, cannot be claimed as of right and the court has discretion to refuse to adjudicate upon it.
(c) In a legal set-off, it is not necessary that the cross-
demands arise out of the same transaction. Equitable set- off can be allowed only when the cross-demands arise out of the same transaction.
(d) In a legal set-off, it is necessary that the amount claimed as set-off must be legally recoverable and must not be time barred. A claim by way of equitable set-off may be allowed even if it is time barred when there is fiduciary relationship between the parties.
(e) A legal set-off requires a court-fee, but no court-fee is required in the case of an equitable set-off".
C.R.No.1611 of 2009 #8# In the present case, it is specifically argued by learned counsel for the plaintiff-respondent that the suit has been filed by an individual and not by the Firm (Commission Agency) qua which the alleged transaction regarding set off relates, therefore, by no stretch of imagination, it can be inferred that there is any fiduciary relationship between the parties. In Milkha Singh's case (supra), there was no such dispute regarding the existence of fiduciary relationship, therefore, on this count also, the judgment is not helpful to the petitioner.
Keeping in view the peculiar facts and circumstances of the present case discussed here-in-above, it can be safely concluded that the alleged price of crops for the year 19.10.1995 to 15.10.1998 amounting to Rs.6,93,048/- cannot be termed as legally recoverable in view of the provisions of Order 8 Rule 6 CPC as well as in view of the binding precedent of this Court in Milkha Singh's case (supra).
Consequently, this Court does not find any illegality or perversity to interfere with the impugned order while exercising powers under Article 227 of the Constitution.
Dismissed.
February 17, 2012 ( JASWANT SINGH ) manoj JUDGE