Bombay High Court
Arahant Co-Operative Housing Society ... vs Rai Kumar Sadh And 2 Ors on 14 January, 2019
Author: G. S. Patel
Bench: G.S. Patel
26-S3175-08.DOC
Shephali
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
SUIT NO. 3175 OF 2008
WITH
COUNTER CLAIM (L) NO. 84 OF 2018
Rai Kumar Sadh ...Plaintif
Versus
Arihant Coop Hsg Society Ltd & Ors ...Defendants
Ms Sneha Phene, with JP Kapadia & O Mohandas, i/b Little Co, for
the Plaintiff.
Mr GN Salunkhe, with SB Durgad, for Defendants Nos. 1 to 8, 11 to
29 and for the Plaintiff in CCL/84/18.
CORAM: G.S. PATEL, J
DATED: 14th January 2019
PC:-
1.The suit itself is for a declaration that a Memorandum of Understanding ("MoU") dated 7th July 2000 and an Agreement for Sale dated 5th October 2000 were both validly terminated and are not binding on the Plaintif. A similar declaration is sought in regard to a Power of Attorney dated 24th December 2001. Then there is a prayer for a declaration that the Defendants are trespassers on the suit property which is a substantial piece of land of about 15077 sq mtrs. at Village Kole Kalyan, Wakola, Santacruz (East).
Page 1 of 614th January 2019 ::: Uploaded on - 15/01/2019 ::: Downloaded on - 16/01/2019 08:40:01 ::: 26-S3175-08.DOC Finally, the suit has a prayer for delivery of possession and in the alternative for damages.
2. This was the frame of the suit as it was originally filed in 2008. The 1st Defendant to the suit is the Arihant Cooperative Housing Society. A Written Statement came to be filed by Defendants Nos. 1 to 29, except Defendants Nos. 3 to 6, on 12th July 2010. There was no counter-claim filed at that time.
3. Some time in 2017 the Plaintif sought to amend the plaint (there was a previous amendment of 2015). This was the second amendment and it was efected on 16th February 2018 pursuant to the order allowing the amendment passed on 29th January 2018.
4. There was an earlier amendment of 30th April 2015 which sought to bring on record the legal representatives of some of the deceased Defendants but did nothing further. The 2018 amendment was more substantial and inserted paragraph 16A which dealt with an order of the Calcutta High Court dated 8th October 2002 in probate proceedings and the Plaintif's Appeal against that order. The amendment says that the Plaintif obtained probate on 10th September 2015. Another portion of the 2018 amendment in paragraphs 27A to 27C then speaks of a search being conducted on 3rd September 2016 in the Office of the Sub-Registrar of Assurances when the Plaintif's Advocates found an alleged Deed of Confirmation dated 18th November 2002. This is important, for the date of this document is six years prior to the date of the suit. This Deed of Confirmation purports to be between the Plaintif himself Page 2 of 6 14th January 2019 ::: Uploaded on - 15/01/2019 ::: Downloaded on - 16/01/2019 08:40:01 ::: 26-S3175-08.DOC and Defendant No. 1, but is said to have been executed only by Defendant No. 1. On this and similar averments, the Plaintif then inserted prayer clauses (b-i) (b-ii) and (b-iii), all relating to the Deed of Confirmation dated 18th November 2002, which, though prior to the date of the suit was a matter that, according to the Plaintif, came to his knowledge only in September 2016.
5. The order allowing the amendment of 2018 also permitted the Defendants to file an additional Written Statement. There is no difficulty with this at all. The problem is that the Defendants have now in 2018 purported to lodge a Counter Claim No. 84 of 2018. This counter-claim is not restricted to the Deed of Confirmation. In fact, none of the prayers in the counter-claim speak of the Deed of Confirmation of 18th November 2002 at all. What the Defendants seek in the counter-claim is specific performance of the agreement dated 5th October 2000, the very agreement that is the subject matter of prayer clause (a) of the plaint as originally instituted before any of the amendments were efected.
6. The question is not whether a counter-claim after a Written Statement is barred. The law is clear. 1 But this is premised on the basis that the cause of action for filing the counter-claim arises after the Written Statement is filed. The reason for this is the very wording of Order VIII Rule 6-A of the Code of Civil Procedure 1908 ("CPC") which is thus:
"6A. Counter-claim by defendant.--(1) A defendant in a suit may, in addition to his right of pleading a set-off under 1 Mahendra Kumar & Anr v State of Madhya Pradesh & Ors, (1987) 3 SCC
265. Page 3 of 6 14th January 2019 ::: Uploaded on - 15/01/2019 ::: Downloaded on - 16/01/2019 08:40:01 ::: 26-S3175-08.DOC rule 6, set up by way of counter-claim against the claim of the plaintiff, any right or claim in respect of a cause of action accruing to the defendant against the plaintif either before or after the filing of the suit but before the defendant has delivered his defence or before time limited for delivering his defence has expired, whether such counter-claim is in the nature of a claim for damages or not:
Provided that such counter-claim shall not exceed the pecuniary limits of the jurisdiction of the Court.
(2) Such counter-claim shall have the same effect as a cross-suit so as to enable the Court to pronounce a final judgment in the same suit, both on the original claim and on the counter-claim.
(3) The plaintiff shall be at liberty to file a written statement in answer to the counter-claim of the defendant within such period as may be fixed by the Court.
(4) The counter-claim shall be treated as a plaint and governed by the rules applicable to plaints."
(Emphasis added)
7. On the Original Side of this Court, what is applicable is Rule 95 of the Bombay High Court (Original Side) Rules and this is how it reads:
"R.95. Counter-claim by defendant.― A defendant in a suit, in addition to his right of pleading a set-off under Order VIII, Rule 6 of the Code of Civil Procedure, may set- up by way of counter-claim against the claims of the plaintif any right or claim in respect of a cause of action accruing to the defendant either before or after Page 4 of 6 14th January 2019 ::: Uploaded on - 15/01/2019 ::: Downloaded on - 16/01/2019 08:40:01 ::: 26-S3175-08.DOC the filing of the suit but before the defendant has delivered his defence and before the time limited for delivering his defence has expired, whether such counter-claim sounds in damages or not, and such counter-claim shall have the same efect as a cross- suit, so as to enable the Court to pronounce a final judgment in the same suit, both on the original claim and on the counter-claim; and the plaintiff (if so advised) shall be at liberty to file a reply to the counter-claim of the defendant within eight weeks after service upon him or his Advocate on record of a copy of the defendant's counter- claim; and the Court or the Judge in Chambers may, on the application of the plaintiff before trial if in the opinion of the Court or the Judge such counter-claim cannot be disposed of in the pending suit or ought not to be allowed, refuse permission to the defendant to avail himself thereof and require him to file a separate suit in respect thereof."
(Emphasis added)
8. Both provisions say that a defendant must file his counter- claim before he has delivered his defence and before the time limited for delivering his defence has expired. The Supreme Court in Mahendra Kumar's case held that this is not an absolute embargo and will not bar the filing of a counter-claim on a cause of action that arose subsequent to the filing of the Written Statement. Can that fairly be said of the present counter-claim is the question to be addressed. In doing so, one must have regard to the decision of the Supreme Court in Bollepanda P Poonacha & Anr v KM Madapa.2 2 AIR 2008 SC 2003.
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9. The counter-claim is presently on a lodging number. I am not for the present deciding this by means of a judicial order but I am directing the Prothonotary and Senior Master to consider this aspect of the matter and to deliver a reasoned decision thereon before deciding whether or not to finally number the counter-claim. The reason is simple. If the counter-claim as currently framed is entirely barred and cannot be filed either under Rule 95 and especially having regard to the averments in paragraph 33 of the counter-claim, then the Prothonotary and Senior Master simply cannot allow the present counter-claim to be filed in this Court.
10. The Prothonotary and Senior Master will endeavour to render his decision on this aspect of the matter within four weeks from today.
11. List the matter for directions thereafter.
12. Liberty to the parties to apply.
(G. S. PATEL, J) Page 6 of 6 14th January 2019 ::: Uploaded on - 15/01/2019 ::: Downloaded on - 16/01/2019 08:40:01 :::