LexSOUTH KONKAN DISTILLERIES & ANR. versus PRABHAKAR GAJANAN NAIK & ORS.
Open in Lexace · Ask the AI about this caseJudgment (excerpt)
, ( ~ [2008) 13 S.C.R. 295 SOUTH KONKAN DISTILLERIES & ANR. A V. PRABHAKAR GAJANAN NAIK & ORS. (Civil Appeal No. 5567 of 2008) SEPTEMBER 9, 2008 B [TARUN CHATTERJEE AND HARJIT SINGH BEDI, JJ] Code of Civil Procedure, 1908: Or. 6, r. 17 -Amendment of written statement and counter claim - Sought for after 13 years of its filing - HELD: Claim c being barred by limitation, trial court and High Court were jus- tified in rejecting the prayer for amendment - Limitation. In a suit for dissolution of partnership, the defendants " . filed a written statement on 17 .6.1987 and set up a counter D claim of Rs.52 lakhs. After 13 years of filing of the written statement, the defendants filed an application in the year 2000 for amendment of the written statement and the counter claim seeking enhanced amount of Rs.8,53,50,000/ - alleging that they were suffering loss of Rs.20,000/- per E day from the date of filing of the written statement. The plaintiffs resisted the application on the ground of limita- tion. The trial court as also the High Court declined the amendment. ,"( In the instant appeal filed by the defendants, the F question for consideration before the Court was as to whether an amendment of the written statement and the counter claim could be allowed, which was filed after thir- teen and a half years of filing of the written statement and the counter claim, if the claim was already barred by the G law of limitation. ~ Dismissing the appeal, the Court HELD: 1.1 The courts generally, as a rule, decline to -. 295 H 296 SUPREME COURT REPORTS [2008] 13 S.C.R. -\:; ~ A allow amendments, if a fresh suit on the amended claim would be barred by limitation on the date of filing of the application. But, that would be a factor to be taken into account in the exercise of the discretion as to whether the amendment should be ordered, and does not affect 8 the power of the Court to order it, if that is required in the I' interest of justice. [para 1 O] [302-C] Vishwambhar & Ors. vs. Laxminarayan (Dead) through Lrs. & Anr. (2001) 6 SCC 163; Vineet Kumar vs. Mangat Sain Wadhera AIR 1985 SC 817; L.J.Leach & Co. Ltd. & Anr. Vs. c Mis. Jardine Skinner & Co. AIR 1957 SC 357; and TN. Alloy Foundry Co. Ltd. Vs. TN. Electricity Board and Ors. (2004) 3 SCC 392; Ragu Thi/ak O.John vs. S. Rayappan & Ors. 2001 (2) sec 472 - referred to. D 1.2 In the instant case, the date on which the appli- cation for amendment of the written statement and the counter claim was filed, the claim was already barred by limitation. If a fresh suit was filed on the amended claim, there cannot be any dispute that the same could also be E barred by the law of limitation. Delay and latches on the part of the appellants to apply for amendment of the writ- ten statement and the counter claim would be the relevant factor for rejecting the application for amendment of the pleadings. There has been thirteen and a half years delay F in filing the application for amendment of the pleadings. Further more, in the application for amendment, the ap- pellants had not given any explanation whatsoever for such delay. Therefore, the two courts below acted within their jurisdiction and were perfectly justified in rejecting the prayer for amendment of the written statement and G the counter claim. [para 16 and 19] (305 8-C 307 D-F] Vineet Kumar vs. Mangat Sain Wadhera 1984 (3) SCC 352 - relied on. Gajanan Jaikishan Joshi vs. Prabhakar Mohan/al Ka/war . • H 1990 (1) sec 166 - distinguished. SOUTH KONKAN DISTILLERIES & ANR. v. 297 PRABHAKAR GAJANAN NAIK & ORS. 1.3 The courts below rightly held that there was no A dispute on the·question of limitation. Therefore, it cannot be said that the point of limitation was an arguable one and the same should be decided by raising an issue at the time of disposal of the suit. [para 15] [305-A] A. K. Gupta & Sons Ltd. vs. Damodar Valley Corporation B AIR 1967 SC 96 - distinguished. 2. From a reading of the original written statement, it is evident that the appellants limited their counter claim to Rs. 52 lakhs only towards damages and made con- c scious choice to compute the sum only upto a particular period and not beyond that. In the original written state- ment and the counter claim, there is no averment regard- ing the continuous nature of losses on daily basis which has been claimed after thirteen and a half years of filing 0 the written statement. The
Excerpt shown. Read the full judgment & AI analysis in Lexace.