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2015 DAILYLAW 4769 (DEL)

CEV ENGINEERING PVT. LTD. v. BRIJ MOHAN PUNJ

2015-11-23

Hima Kohli

body2015
Judgment : HIMA KOHLI, J. I.A. 11535/2015 (by the defendant, under Order VI Rule 17 CPC) 1. The present application has been filed by the defendant under Order VI Rule 17 of the Code of Civil Procedure (for short `the Code’) praying inter alia for permission to amend the written statement and introduce a counter claim as proposed in paras 8 to 11 therein. 2. Before dealing with the respective submissions advanced by the counsels for the parties, a brief reference to the factual background of the case is necessary. 3. The plaintiff company(tenant) has filed the present suit on 21.5.2013, for seeking recovery of a sum of Rs.42,10,000/- towards the security amount allegedly wrongfully withheld by the defendant(landlord), along with the pendente lite and future interest and for claiming damages to the tune of Rs.10 lacs . 4. Summons were issued in the suit on 24.5.2013, returnable on 28.11.2013. After the service of the summons, the defendant had filed the written statement on 6.9.2013 and the plaintiff had filed the replication on 6.11.2013. Pleadings were completed in the suit, the case remained pending before the Joint Registrar for admission/denial of documents that was finally conducted on 29.1.2015. The case was listed before the court on 23.3.2015, for framing of issues and with the consent of the parties, they were referred to mediation, but as is apparent from the Mediator’s report dated 5.5.2015, there was no amicable settlement. Thereafter, the present application came to be filed by the defendant on 18.5.2015, seeking leave to file a counter claim. 5. Ms. Chaudhry, learned counsel for the defendant had submitted that the suit for recovery of money has been filed by the plaintiff for recovery of the security amount to the tune of Rs.42,10,000/- deducted by the defendant (landlord). The lease deed in respect of the tenanted premises that was originally for a period of three years, commencing on 1.10.2008 and had expired on 30.9.2011. A fresh lease deed was executed by the parties for a period of four years, that commenced on 1.10.2011 and was to expire on 30.9.2015. The renewed lease deed had a lock-in period of 24 months. It is the case of the defendant that though the said lock in period was to expire on 1.10.2013, the plaintiff had proceeded to vacate the suit premises nine months in advance, on 31.12.2012. 6. The renewed lease deed had a lock-in period of 24 months. It is the case of the defendant that though the said lock in period was to expire on 1.10.2013, the plaintiff had proceeded to vacate the suit premises nine months in advance, on 31.12.2012. 6. Learned counsel for the defendant had stated that at the time of filing the written statement, a specific plea was taken by the defendant in para 2 of the preliminary objections and para 5 on merits to the effect that the plaintiff company had breached clause 4.2 of the lease deed dated 30.9.2011, by vacating the suit premises prior to the expiry of the lock-in period and it is liable to pay a sum of Rs.29,66,023/- towards the rental for the period of nine months which was a part of the lock-in period. It was stated that in order to mitigate the losses caused at the hands of the plaintiff company, the defendant had made sincere efforts to look out for a tenant and finally, in July 2013, he had executed two separate lease deeds in respect of different portions of the suit premises with two different parties. After adjusting the rent that was received from the said parties, the amount payable by the plaintiff company for the lock-in period stood reduced from a sum of Rs.29,66,023/-, to a sum of Rs.9,03,155/-. Premised on the aforesaid claim, the defendant seeks leave to file a counter claim for recovery of an amount of Rs.11,23,310/- payable by the plaintiff company for the remaining lock-in period, including the interest component. 7. Learned counsel for the defendant stressed that the present application is bonafide and made at the earliest opportunity. She stated that the plaintiff company would not be prejudiced in any manner if the application is allowed as issues have not been framed so far and the trial in the suit has yet to commence. She added that even otherwise, the period of limitation for filing a suit for recovery of the amount mentioned in the counter claim has not yet expired as the cause of action for instituting a fresh suit would have arisen on 31.12.2012, the date on which the suit premises had been vacated by the plaintiff company during the subsistence of the lock-in period and if reckoned from the said date, the period of limitation which is three years, shall expire on 30.12.2015. To fortify her submission that even after the stage of filing the written statement is over, the defendant is entitled to file an application under Order VI Rule 17 of the Code for seeking amendment of the written statement and for incorporating the counter claim, learned counsel had placed reliance on a decision of the Supreme Court in the case of Ramesh Chand Ardawatiya Vs. Anil Panjwani reported as (2003) 7 SCC 350 . 8. A reply in opposition to the present application has been filed by the plaintiff company. Mr.Vikas Malhotra, learned counsel for the plaintiff had canvassed that the counter claim sought to be introduced by the defendant is barred by limitation, as prescribed under Order VIII Rule 6A of the Code and resultantly, the application being legally untenable and unsustainable, is liable to be rejected. He contended that all the facts stated in the present application were well within the knowledge of the defendant at the time of filing the written statement and no new facts/developments have taken place thereafter which would entitle him to approach the court so belatedly, asking for permission to file the counter claim, having already filed the written statement in September 2013. It was argued that merely because the defendant had stated in the written statement, that he is entitled to receive the differential of the rent for the period of nine months, which is a part of the lock-in period, would not be a ground to grant him leave as the defendant has failed to demonstrate that despite due diligence, he was not in a position to file the counter claim along with the written statement. In support of his submission that the provisions of Order VIII Rule 6A of the Code prescribe that once the written statement has been filed by a party, a counter claim ought not to be entertained by the court, reference was made to a decision of the Supreme Court in the case of Bollepanda P.Poonacha and Anr. Vs. K.M.Madapa, reported as (2008) 13 SCC 179 . 9. The Court has perused the pleadings in the application and examined the record in the light of the arguments advanced by the counsels for the parties. Before dealing with the submissions made, it is necessary to examine the relevant provisions of law applicable to the case at hand. 10. Vs. K.M.Madapa, reported as (2008) 13 SCC 179 . 9. The Court has perused the pleadings in the application and examined the record in the light of the arguments advanced by the counsels for the parties. Before dealing with the submissions made, it is necessary to examine the relevant provisions of law applicable to the case at hand. 10. Order VIII CPC deals with “written statement, set-off and counter-claim”. The said provision was firstly amended by the Amendment Act 104 of 1976, whereunder Rule 5 relating to specific denial was re-numbered and Rules 6A to 6G were inserted. Later on, by virtue of Act 22 of 2002, Rule 8A was omitted and Rules 1, 1A, 9 and 10 were substituted w.e.f. 01.07.2002. Under Rule 1, the defendant is required to present a written statement of his defence within thirty days from the date of service of summons on him. The proviso appended to the said Rule extends the period for filing the written statement to not later than ninety days from the date of service of summons, but for reasons to be recorded in writing. Under Rule 6, the defendant may at the first hearing of the suit but not afterwards unless permitted by the Court, present a written statement containing particulars of the debt sought to be set-off, subject to the pecuniary limits of the concerned court. Rule 6A deals with filing of a counter claim by the defendant, Rule 6B refers to the details/averments required to be stated by the defendant in a counter claim and Rule 6C entitles the plaintiff to apply to the Court for exclusion of the counter claim set up by a defendant. The aforesaid Rules introduced by the Amendment Act 104 of 1976 are reproduced hereinbelow for ready reference:- “6A. The aforesaid Rules introduced by the Amendment Act 104 of 1976 are reproduced hereinbelow for ready reference:- “6A. Counter claim by defendant.- (1) A defendant in a suit may, in addition to his right of pleading a set-off under 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 plaintiff either before or after the filing of to suit but before the defendant has delivered his defence or before the 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. 6B. Counter claim to be stated.- Where any defendant seeks to rely upon any ground as supporting a right of counter-claim, he shall, in his written statement, state specifically that he does so by way of counter claim. 6C. Exclusion of counter-claim.- Where a defendant sets up a counter-claim and the plaintiff contends that the claim thereby raised ought not to be disposed of by way of counter-claim but in an independent suit, the plaintiff may, at any time before issues are settled in relation to the counter-claim, apply to the Court for an order that such counter-claim may be excluded, and the Court may, on the hearing of such application make such order as it thinks fit.” 11. Order VIII Rule 8 of the Code empowers the defendant or the plaintiff, as the case may be, to raise any new ground of defence, which has arisen after the institution of the suit or the presentation of a written statement claiming a set-off or a counter-claim. Order VIII Rule 8 of the Code empowers the defendant or the plaintiff, as the case may be, to raise any new ground of defence, which has arisen after the institution of the suit or the presentation of a written statement claiming a set-off or a counter-claim. Rule 9 prescribes that no pleading subsequent to the written statement of a defendant other than by way of defence to set-off or counter-claim shall be presented except by the leave of the Court and upon such terms as the Court thinks fit; but the Court may at any time require a written statement or additional written statement from any of the parties and fix a time of not more than thirty days for presenting the same. 12. The other relevant provision is Order VI Rule 17 of the Code that provides for amendment of the pleadings subject to the conditions prescribed in Rule 17 (that was amended by the Act 22 of 2002), which do not have any application in the present case. It is well settled that amendment applications are ordinarily required to be considered liberally by the courts. The judicial dicta is that amendments to the written statement ought to be considered by the courts more liberally than an amendment application filed by the plaintiff for seeking permission to amend the plaint. A glance at Order VIII Rule 6A indicates that a defendant is expected to file a counter claim alongwith the written statement and the right to set up a counter claim is over and above the right of pleading a set-off under Rule 6. In other words, a set-off has to be pleaded in the body of the written statement and the counter claim must also form a part of the written statement and should relate to a cause of action that has accrued to a defendant against the plaintiff either before or after filing of the suit but before the defence has been delivered under the written statement or before the timeline prescribed for delivering the defence has expired. 13. The inevitable conclusion is that once the right of the defendant to file the written statement has expired, then a counter claim cannot be filed. 13. The inevitable conclusion is that once the right of the defendant to file the written statement has expired, then a counter claim cannot be filed. However, on considering a case where the written statement has been filed belatedly, the court does have the discretion to permit the same even if it contains a plea in the nature of set-off or a counter-claim. While doing so, the court must be cautious in exercising its discretion and keep in mind whether the belated leave granted to the defendant would cause any prejudice the plaintiff or take away a vested right that may have accrued in his favour due to the lapse of time. 14. In the case of Ramesh Chand (supra) referred to by learned counsel for the defendant, the question of law engaging the Supreme Court was whether it is permissible to raise and plead a counter claim though the appellant/defendant had not filed a written statement and had also lost his right to do so. The facts of the said case were that the appellant/defendant had been proceeded against ex-parte in the suit and a counter claim was sought to be pleaded by him belatedly, without first filing a written statement. Turning down the plea of the appellant/defendant that it is permissible to prefer a counter claim even in the absence of any written statement and in circumstances where he had been proceeded against ex-parte, the Supreme Court had observed that there are three modes of pleading or setting up a counter claim in a civil suit, firstly, at the stage of filing the written statement under Order VIII Rule 1, secondly by way of an amendment in the written statement subject to permission from the Court and lastly, by way of a subsequent pleading under Rule 9. The following observations made in the said context are considered apposite and are reproduced hereinbelow:- “28. Looking to the scheme of Order VIII as amended by Act No.104 of 1976, we are of the opinion, that there are three modes of pleading or setting up a counter-claim in a civil suit. The following observations made in the said context are considered apposite and are reproduced hereinbelow:- “28. Looking to the scheme of Order VIII as amended by Act No.104 of 1976, we are of the opinion, that there are three modes of pleading or setting up a counter-claim in a civil suit. Firstly, the written statement filed under Rule 1 may itself contain a counter-claim which in the light of Rule 1 read with Rule 6-A would be a counter-claim against the claim of the plaintiff preferred in exercise of legal right conferred by Rule 6-A. Secondly, a counter-claim may be preferred by way of amendment incorporated subject to the leave of the Court in a written statement already filed. Thirdly, a counter-claim may be filed by way of a subsequent pleading under Rule 9. In the latter two cases the counter-claim though referable to Rule 6-A cannot be brought on record as of right but shall be governed by the discretion vesting in the Court, either under Order VI Rule 17 of the CPC if sought to be introduced by way of amendment, or, subject to exercise of discretion conferred on the Court under Order VIII Rule 9 of the CPC if sought to be placed on record by way of subsequent pleading. The purpose of the provision enabling filing of a counter-claim is to avoid multiplicity of judicial proceedings and save upon the Court's time as also to exclude the inconvenience to the parties by enabling claims and counter-claims, that is, all disputes between the same parties being decided in the course of the same proceedings. If the consequence of permitting a counter-claim either by way of amendment or by way of subsequent pleading would be prolonging of the trial, complicating the otherwise smooth flow of proceedings or causing a delay in the progress of the suit by forcing a retreat on the steps already taken by the Court, the Court would be justified in exercising its discretion not in favour of permitting a belated counter-claim. The framers of the law never intended the pleading by way of counter-claim being utilized as an instrument for forcing upon a re-opening of the trial or pushing back the progress of proceeding. The framers of the law never intended the pleading by way of counter-claim being utilized as an instrument for forcing upon a re-opening of the trial or pushing back the progress of proceeding. Generally speaking, a counter-claim not contained in the original written statement may be refused to be taken on record if the issues have already been framed and the case set down for trial, and more so when the trial has already commenced. But certainly a counter-claim is not entertainable when there is no written statement on record. There being no written statement filed in the suit, the counter-claim was obviously not set up in the written statement within the meaning of Rule 6-A. There is no question of such counter-claim being introduced by way of amendment; for there is no written statement available to include a counter claim therein. Equally there would be no question of a counter-claim being raised by way of 'subsequent pleading' as there is no 'previous pleading' on record.” (emphasis added) 15. It was thus clarified by the Supreme Court that the cause of action for setting up the counter claim should have arisen before filing the written statement [Ref: Mahendra Kumar vs. State of M.P. reported as (1987) 3 SCC 265 ]. In the aforesaid case, the Supreme Court had also taken note of an earlier decision in the case of Sangram Singh vs. Election Tribunal, Kotah reported as AIR 1955 SC 425 wherein it was held that in spite of the fact that the defendant in the said case had been proceeded against ex-parte in the suit, he had the right to appear at any subsequent stage of the proceedings and was entitled to participate in the subsequent hearing from the time of entering appearance. But, the defendant was not entitled to file the written statement unless he was in a position to show good cause for his previous non-appearance and thus seek relegation to the position prior to being proceeded against ex-parte. The aforesaid view taken by a two-Judge Bench in the case of Sangram Singh (supra) was restated by a three-Judge Bench in the case of Arjun Singh vs. Mohindra Kumar reported as AIR 1964 SC 993 . The aforesaid view taken by a two-Judge Bench in the case of Sangram Singh (supra) was restated by a three-Judge Bench in the case of Arjun Singh vs. Mohindra Kumar reported as AIR 1964 SC 993 . In the same year, in the case of Laxmidas Dayabhai Kabrawala vs. Nanabhai Chunilal Kabrawala reported as AIR 1964 SC 11 , it was held by the Supreme Court that a right to plead a counter claim is a statutory right and a counter claim is not admissible in a case which is admittedly not within the statutory provisions. In the said decision, it was clarified that the crucial date for the purpose of determining when the counter claim can be stated to have been filed and pleaded as on a par with a plaint in a cross suit, is the date on which the written statement containing the counter claim is filed. The Supreme Court had also cautioned that save in exceptional cases, a counter claim cannot be permitted to be incorporated by way of amendments proposed under Order VI rule 17 CPC. 16. In the case of Bollepanda P.Poonacha (supra), relied upon by learned counsel for the plaintiff, a two-Judge Bench of the Supreme Court had picked up the thread from the decision in the case of Ramesh Chand (supra) and held that a belated counter claim must be discouraged by the court. In the said case, the question that had arisen for consideration was as to whether it is permissible to file a counter claim after filing the written statement. Looking at the facts of the case where the suit was instituted by the appellant/plaintiff against the respondent/defendant claiming title and possession over a property in the year 1997 and the respondent/defendant had filed a written statement in the same year, wherein he had taken a plea that he had lawfully purchased the suit property, the respondent/defendant had filed an application after the passage of nine years, in the year 2006, asking for leave to plead a counter claim on the premise that he had been dispossessed by the appellant/plaintiff in the year 1998. The application filed by the respondent / defendant for permission to plead a counter claim was allowed by the Civil Judge whose order was upheld by the High Court in appeal. The application filed by the respondent / defendant for permission to plead a counter claim was allowed by the Civil Judge whose order was upheld by the High Court in appeal. Aggrieved by the said decision, the appellant/plaintiff had approached the Supreme Court, who had opined that the Civil Judge had erred in allowing the amendment application filed by the respondent/defendant. Taking note of the provisions of Order VIII Rule 6A CPC which relate to filing of a counter claim by the defendant, the Supreme Court had observed that in such matters, the courts have wide discretion and the attempt must be to sub-serve the cause of justice and avoid further litigation. However, a word of caution was added that the said discretion must be exercised in a judicious manner and the statutory limitation should not be overstepped. Looking at the factual position, where the respondent/defendant had elected to file an application for leave to plead a counter claim after the lapse of over nine years from the date of filing the written statement, the Supreme Court had allowed appeal filed by the appellant/plaintiff noting that he would suffer serious injustice and irreparable loss if such an amendment was allowed. 17. In the instant case, the suit for recovery of money was instituted by the plaintiff/company on 21.05.2013, the written statement was filed by the defendant on 06.09.2013 and prior to the stage of framing of issues, an amendment application was filed by the defendant on 18.05.2015, for permission to plead a counter claim, wherein he is seeking recovery of an amount of Rs.11,23,310/- from the plaintiff for the alleged breach of the lock-in period clause incorporated in the Lease Deed dated 30.09.2011, by vacating the suit premises nine months in advance. It is pertinent to note that the explanation offered by the defendant for pleading a counter claim is that after filing the written statement on 06.09.2013, he had initiated steps to mitigate the losses caused by the plaintiff/company by prematurely vacating the suit premises and he made efforts to locate a tenant. The defendant claims to have succeeded in identifying two tenants in July, 2013. The defendant claims to have succeeded in identifying two tenants in July, 2013. The present application was filed by the defendant in May, 2015, claiming recovery of monies after deducting the amount received by him from the new tenants for a part of the lock-in period, thus scaling down the amount payable by the plaintiff company to the residual period prior to July, 2013, i.e., between January, 2013 to June, 2013. 18. Given the facts above, the cause of action for pleading the counter claim would have arisen on 31.12.2012, when the plaintiff/company had elected to vacate the suit premises. The prescribed period of limitation for instituting a suit for recovery of monies for the alleged wrongful loss caused by the plaintiff/company to the defendant due to vacating the suit premises prematurely, would have commenced on 31.12.2012 and it shall expire at the end of three years, on 30.12.2015. 19. It is a matter of record that though no counter claim had been filed, its foundation was laid by the defendant, who had taken such a plea in para 2 under the preliminary objections and in para 5 on merits of the written statement. In para 2 of the preliminary objections, he had specifically referred to clause 4.2 of the Lease Deed dated 30.09.2011, which prescribed that tenant was not entitled to terminate the lease without cause during the initial period of 24 months described as the lock-in period and if the plaintiff/company wished to terminate the lease during the lock-in period, it was required to pay the rent for the residual period. Stating that the plaintiff/company was obliged to pay the rent to the tune of Rs.61,86,474/- towards the lock-in period of nine months, apart from the service tax, maintenance charges etc., which would total to a sum of Rs.71,76,123/-, the defendant had explained that the said amount had been adjusted against the security deposit of Rs.42,10,100/- lying with him and even after making the said adjustment, a sum of Rs.29,66,023/- was due and payable by the plaintiff/company, apart from the electricity and water dues. 20. In para 5 on merits of the written statement, the defendant had reiterated that after adjustment of the security amount, a total sum of Rs.29,66,023/- was due and payable by the plaintiff/company towards the rent for the remaining months of the lock-in period and the outstanding electricity and water dues. 20. In para 5 on merits of the written statement, the defendant had reiterated that after adjustment of the security amount, a total sum of Rs.29,66,023/- was due and payable by the plaintiff/company towards the rent for the remaining months of the lock-in period and the outstanding electricity and water dues. However, the written statement did not specifically plead a counter claim, which oversight is sought to be rectified by the defendant by filing the present application. 21. In the present application, the defendant has elaborated the fact that that the suit premises was let out by him in two parts to two different parties w.e.f. 01.07.2013 and 12.07.2013 respectively and taking into consideration the fact that he had received a sum of Rs.55,08,319/- as rent from both the tenants for the period between 01.07.2013 to 30.09.2013 and after adjusting the said amount from Rs.64,11,474/- being the total amount that was payable by the plaintiff company as rent during the lock-in period, a balance sum of Rs.9,03,155/- would be due and payable to him alongwith interest. Thus, as against a sum of Rs.22,01,374/- that the defendant had quantified in the written statement, as due and payable by the plaintiff/company after adjusting the security deposit of Rs.42,10,100/-, by virtue of the amendment application, due to the events that had transpired subsequently, the defendant has reduced the amount demanded to Rs.9,03,155/-, for which purpose he has sought leave to plead a counter claim limited to a sum of Rs.11,23,310/- (including the interest component). 22. On examining the facts of the present case, it clearly emerges that it is not a case where the defendant had not made any specific averment in his written statement with regard to the amounts that he now claims are due and payable by the plaintiff/company for the residual period of the lock-in period except for the fact that the said amount has not been claimed in the form of a counter claim. Even otherwise, when the period of limitation for instituting a fresh suit for recovery is to be reckoned from 31.12.2012, the date when the plaintiff/company had admittedly vacated the suit premises, the defendant still has time upto 30.12.2015 to institute a separate suit for recovery against the plaintiff/company. Moreover, issues have yet to be framed in the suit and the case has not been set down for trial. Moreover, issues have yet to be framed in the suit and the case has not been set down for trial. Looking at the stage of the suit, this is not a case where permitting the defendant to plead a counter claim by way of the proposed amendment would result in prolonging the trial or causing delay in the progress of the suit. Rather, it is a case where the foundation for maintaining a counter claim form a part of the pleadings in the written statement and only the claim amount is sought to be pared down by the defendant due to the subsequent events narrated above. In this background, the defendant proposes to amend the written statement by seeking leave of this court to plead a counter claim, for which he is in any case entitled to sue the plaintiff/company by instituting an independent suit on the same cause of action. 23. Unlike the facts in the case of Bollepanda P.Poonacha (supra), referred to by learned counsel for the plaintiff where the respondent/defendant had taken over nine years to file an application for leave to file a counter claim, when the cause of action had arisen at the time of instituting the suit, in the present case, the defendant has acted with alacrity. After the pleadings were complete in the suit and the admission/denial of documents was conducted in January, 2015, the parties had expressed their willingness to submit themselves to mediation, which had unfortunately not succeeded. The report of the learned Mediator stating that the mediation had ended as a non-starter is of the first week of May, 2015 and the instant application was filed by the defendant without losing any time, in the second week of May, 2015. Thus, it cannot be stated that the defendant had not shown due diligence or dragged his feet, which is a relevant factor and ought to weigh with the Court while granting permission to plead a counter claim. 24. Thus, it cannot be stated that the defendant had not shown due diligence or dragged his feet, which is a relevant factor and ought to weigh with the Court while granting permission to plead a counter claim. 24. The submission made by learned counsel for the plaintiff that the two-Judge Bench of the Supreme Court in the case of Bollepanda P.Poonacha (supra) had considered an earlier decision of a two-Judge Bench of the Supreme Court in the case of Ramesh Chand (supra) and had still proceeded to hold that by inserting Order VIII Rule 6A in the CPC, the legislature had placed an embargo on the exercise of jurisdiction by the court, was an observation made in the facts of the said case. Pertinently, in the very same judgment, Justice S.B. Sinha, the author of the said decision had held that the court has a wide discretion in such matters and the end purpose must be to sub-serve the ultimate cause of justice and avoid further litigation by driving the defendant to file a separate suit. Reference made in the said case to the decision in the case of Ramesh Chand (supra) was in the context of emphasizing that filing of a belated counter claim must be discouraged. 25. It therefore cannot be urged that in the case of Bollepanda P.Poonacha (supra), a digression has been made from the view taken by the two-Judge Bench of the Supreme Court in the earlier case of Ramesh Chand (supra). Rather, on a conspectus of the case law on the point involved, the subsequent judgment has only reaffirmed the view taken earlier, that a belated counter claim should not find favour with the Court. This is not to say that it has diluted the earlier decision which has carefully weighed the pros and cons of circumstances where a counter claim can be permitted. 26. Given the facts and circumstances of the present case, this Court is of the opinion that to meet the ends of justice, the defendant ought to be permitted to plead a counter claim instead of filing a separate suit for the relief of recovery of money, which arises out of the same cause of action that has impelled the plaintiff company to institute the suit against the defendant. There is neither any inexplicable delay on the part of the defendant in approaching the Court for permission to plead a counter claim, nor is there any bar by way of limitation that would cause a prejudice to the plaintiff/company if such an application is allowed. Rather, the purpose of Order VIII Rule 9 of the Code would be served by permitting the defendant to file the counter claim to avoid multiplicity of judicial proceedings, save the courts’ time and litigation expenses and avoid causing inconvenience to the parties by settling all the disputes that have arisen between them in the course of the present proceedings. 27. Accordingly, the present application is allowed. The defendant is permitted to amend the written statement and introduce the counter claim as proposed therein. The requisite court fee payable on the counter claim shall be deposited within two weeks. No orders as to costs.