M/s. JSW Steel Limited vs Mysore Minerals Limited. Writ Petition 15190/2020 decided on 13 January 2021.
Judgment Link: http://judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/359218/1/WP15190-20-13-01-2021.pdf
Relevant paragraphs: 1. Petitioner being the plaintiff in a money suit in Com.O.S.No.7213/2012 is at the door steps of the Writ Court for assailing the order dated 10.11.2020 a copy whereof is at Annexure-A whereby the learned LXXXII Addl. City Civil Judge, Bengaluru, having allowed respondent-defendant’s application in I.A.No.IV filed u/o VI Rule 17 r/w Sec. 151 of CPC, 1908 has accorded leave to amend the Written Statement for incorporating a Counterclaim therein; the respondent having entered caveat through it’s counsel, opposes the Writ Petition.
4.A The question whether a Counterclaim can be filed separately after the filing of the Written Statement or can be introduced by way of amendment to the already filed Written Statement, subject to compliance of requisites and save with all just exceptions, is no longer res integra vide Ashok Kumar Kalra vs Wind Cdr Surendra Agnihotri and others (2020) 2 SCC 394.
Questions for determination:
(i) whether leave to incorporate the time- barred Counterclaim by way of amendment to the Written Statement can be granted u/o VI Rule 17 of CPC, 1908 … ? and
(ii) whether Court granting leave to amend the Written Statement for taking up a Counterclaim can relax the period of limitation prescribed for filing the same, by invoking the doctrine of relation back … ?
4F(a) The concept of “bar of limitation” on the one hand and the idea of “delay & latches” on the other by their very nature, are different from each other, although their successful invocation may arguably serve the same purpose in a litigation; the former absolutely bars the recourse to remedy; and the later may deny the remedy in the proceedings in question, the right to remedy being kept open for pursuit in other proceedings; prescription of period of limitation for claiming legal remedies is normally the prerogative of the legislature, whereas, the ground of ‘delay & latches’ is a matter of discretion inhering the Courts; this discretion needs to be exercised in accordance with the rules of reason & justice, is beside the point; the right to remedy ordinarily commits legal suicide if the limitation period prescribed therefor lapses; no court/authority has discretion to entertain the claim for it’s grant; Sec.3(1) of the Limitation Act, 1963 dictates their rejection at the threshold, regardless of the contention from the other side.
4F(a) The delayed making of a Counterclaim by way of amendment of Written Statement is one thing and the making of a time barred Counterclaim by way of such amendments, is another; in treating the former, the court has discretion in the sense that it may grant leave to amend the Written Statement or refuse; in other words, a Written Statement can be amended even belatedly, for introducing a Counterclaim therein with the leave of court, provided that leave to amend is sought for within the statutory period of limitation; for that purpose, a Counterclaim shall be treated to be a suit by fiction of law; however, leave may be denied inter alia on the ground of ‘delay & latches’, even if the period of limitation has not expired; in such event, defendant may bring a separate suit; this is one scenario.
4F(c) The other scenario is: where a time barred Counterclaim is sought to be introduced by amendment to the Written Statement; in such a case, no leave can ever be granted; Court has no discretion to entertain such a claim; in such matters, there is no discretion to disobey the mandate of law, namely, Sec.3(1) r/w 3(2)(b)(ii) of the Limitation Act; a time-barred Counterclaim cannot be made even if there is no ‘delay & latches’ in moving the application for amendment of pleadings; to put it shortly, time-barred claims cannot be the subject matter of pleadings or their amendments; a careful perusal of the Written Statement and the subject amendment application filed by the respondent, leaves no manner of doubt that the Counterclaim in question is hopelessly time-barred and a right not to be Counterclaimed has accrued to the petitioner-plaintiff.
The respondent’s contention that he has already laid the foundation for the filing of Counterclaim in the original Written Statement itself, pales into insignificance since what the law of limitation bars is the remedy and not the grounds on which it is founded; in other words, even if the respondent had taken up all the grounds in his Written Statement as filed originally, a prayer for counter decree cannot be belatedly superadded once the same becomes time-barred.
In the above circumstances, this Writ Petition is entitled to succeed and accordingly it does; a Writ of Certiorari issues quashing the impugned order; the subject application of the respondent seeking leave to amend the Written Statement for introducing the Counterclaim is dismissed.
Compiled by S. Basavaraj, Advocate, Daksha Legal.
Daksha Legal 