Vijender Jain, J.@mdashThis is an application filed by the defendant under Order 6 Rule 17 read with Section 151 CPC for amendment of written statement. Mr. Vashisht, learned counsel for the applicant/defendant has contended that no new cause of action will be introduced if amendment of written statement is allowed. Prayer in the application is to amend para 15 by adding paragraphs 1.5-A and 15-B after paragraph 15 of written statement. The amendment sought is to the following effect:
"15-A. In the facts as stated in the foregoing paragraphs of the Written Statement above, which are not being reiterated for the sake of brevity and may be read as a part of this paragraph, the Defendant submits that it is entitled to a Set Off of a sum of Rs. 19,33,370.90 (Rupees Nineteen Lacs Thirty Three Thousand Three Hundred Seventy and Paise Ninety Only) along with interest @ 18% per annum from February 25, 1994, up to the date of adjustment in full and costs of the Set Off or such part thereof as may be necessary against the plaintiffs demand/claim in the Suit.
15-B. The Defendant states the said sum of Rs. 19,33,370.90 (Rupees Nineteen Lacs Thirty Three Thousand Three Hundred Seventy and Paise Ninety Only) is an ascertained sum of money, which is legally recoverable by the Defendant from the plaintiff. The said sum falls within the pecuniary jurisdiction of the Hon''ble Court and for the purposes of the Set Off, the plaintiff and the Defendant fill the same character as they fill in the suit."
2. On the basis of the aforesaid amendment it has been contended that in the written statement filed by the defendant, defendant has incurred a sum of Rs. 19,33,370.90 only as damages and liquidated damages. The same finds mention in Paragraph (F) under the heading Preliminary Objections. The same is reproduced below :-
"(F) It is pertinent to point out that although time for completion of works expired on 29.8.1993 the Defendant continued to give the plaintiff opportunities to perform its obligations, so much so that till February 10, 1994 when the plaintiff rescinded the Contract, the Defendant had not terminated the same. The abnormal delay in the completion of the work and the plaintiffs total failure in performing any obligations under the Contract delayed the finishing of the Defendant''s Training Institute at Gurgaon causing the Defendant immense loss and damage. That defendant had to re-tender this work and appoint another Contractor (M/s. Office Equipment) to start from scratch not only delaying the project but also resulting in Defendant paying increased costs of Rs. 11,56,204.20 (Rupees eleven lacs fifty six thousand two hundred four and paise twenty only) which the Defendant is entitled to recover from the plaintiff by way of damages on risk-purchase made up as follows:
i) Value of total job performed by M/s Office Equipment Rs. 70,19,328.31
ii) Supervision charges @ 15% in terms of Clause 7.0.9.0 of the General
Conditions of Contract : Rs. 10,52,899.24
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Total Rs. 80,72,227.55
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Less:
1) Value that would have been payable to plaintiff had it performed the same job: Rs. 69,16,023.35
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Balance : Rs. 11,56,204.20
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(RUPEES ELEVEN LACS FIFTY SIX THOUSAND TWO HUNDRED FOUR AND PAISE TWENTY ONLY)
3. In addition to the above, the defendant is entitled to liquidated damages for delay in completion of work of a total value of Rs. 7,77,166.20 ps. being 10% of the total Contract Value in accordance with Clause 4.4.0.0 of the General Conditions of Contract. A total of Rs. 19,33,370.40 (Rupees nineteen lacs thirty three thousand three hundred seventy and paise forty only) is, Therefore, due and payable by the plaintiff to the Defendant.
4. What has been contended before me by Mr. Vashisht is that in view of the facts having been mentioned in paragraph (F), the proposed amendment would neither amount to setting up new cause of action nor would hit by the Limitation Act. He has contended that in terms of Section 3 of the Limitation Act, the same was not barred by limitation and, Therefore, application for amendment on that account be allowed. In support of his contention learned counsel fo; the applicant/defendant has cited
5. On the other hand, counsel for the non-applicant/plaintiff has contended that the present application is sheer abuse of the process of law. The defendant has filed an application after filing of the written statement under Order 13 Rule 2 CPC to place on record the documents in support of the averment made in paragraph (F) of the written statement and that application was allowed subject to payment of cost. Then again to delay the trial of the suit, the defendant filed an application on the basis of averment made in paragraph (F) of the written statement stating that the amendment be allowed to incorporate the plea of counter claim. The said application of the defendant was also dismissed by this Court vide order dated 2.2.2000, No appeal has been preferred against the order passed by this Court on 2.2.2000. It was further contended thai from the plain reading of the averment made in the written statement, the same is not on account of same transaction or on the basis of same cause of action What has been pleaded by counsel for the. defendant in the written statement is the amount which the defendant is claiming on account of damages or liquidated damages. Mr. Kapur has also relied upon
6. I have given my careful consideration to the arguments advanced by learned counsel for both the parties. The principles on which the amendment is to be allowed are settled. If an amendment introduces a new cause of action, or changes the nature of the suit, or if the amendment is mala fide or if by allowing of such an amendment, the period of limitation is extended, these amendments are not to be allowed.
7. In the instant case, the written statement was filed on 17.11.1995, the suit of the plaintiff was filed on 3.1.1995. The facts on which the applicant has based its case for amendment were in existence from 17.11.1995. However, the present application has been filed on 18.2.2000, i.e, well after four years and 3 months. Not only this application for amendment has been filed by taking the plea that amounts which has been mentioned in paragraph (F) of the written statement the same may be pleaded as set off. Further amendment is prayed demanding an interest at the rate of 18% p.a. on the amount of set off. Though at the time of hearing, the learned counsel for the defendant has contended that the amendment for set off be allowed and if the same is allowed, he is prepared to give up his claim for amendment for 18% interest on the amount of set off.
8. To my mind the principle to determine as to whether by allowing the amendment, the period of limitation will be extended one has to interpret the scope of Order VIII Rule 6 of the Code of Civil Procedure. The said order makes it clear that if the defendant does not put his claim for set off on the first date of hearing in his written statement, he has to make a very strong case for condensation of delay and satisfy the Court that there was very valid ground for not doing so at the first opportunity. In the instant case I have to see that from the plain phraseology of Order VII Rule 6, the intention of the legislature is manifest that whosoever wishes to claim a set oft, he must do so when he appears for the first time before the Court in respect to the notice issued to him. The written statement was filed by the defendant in November, 1995. In November, 1995 when the defendant has taken the plea that so much amount has been spent on account of liquidator damages or other damages, at that stage a claim of set off could have been entertained. Having waited for more that four years by first filing documents in support of those averments on which the defendant chose to go on trial, thereafter filing an application for amendments stating the same facts, on the plea that same may be taken as counter claim, that plea was dismissed, thereafter filing the present application for amendment taking the plea of set off would only show that the amendment prayed for are to delay the suit and same are dilatory tactics. If the defendant had incurred some expenditure and had a claim against the plaintiff the same ought to have, been pleaded as such in the written statement in 1995, having not done so applicant cannot be allowed to take advantage of its own wrong. If the amendment is allowed by virtue of this application filed in the year 2000 that would amount to extending period of limitation for filing the suit. If the applicant was genuine about amendment in the written statement it ought to have filed at the first opportunity. From the plain reading of Order 8 Rule 6 CPC which is to the following effect, it would be clear that when a claim of set off is to be made, it is at the first hearing of the suit in which a claim of set off has to be mentioned.
"Order VIII Rule 6. Particulars of set-off to be given in written statement --(1) Where in a suit for the recovery of money the defendant claims to set-off against the .plaintiffc. 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 plaintiffs suit, the defendant may, at the first hearing of the suit, but not afterwards unless permitted by the Court, present a written statement containing the particulars of the debt sought to be set-off.
9. The defendant filed the written statement in the year 1995. It is too late in the day for the applicant/defendant to move the present application for amendment to incorporate the plea of set-off. The amendment sought for is highly belated.
10. The authorities cited by learned counsel for the applicant/defendant will not be of any assistance to the applicant. In all the cases where the amendment was allowed, amendment application was filed by the plaintiff and the cause of action which were required to be pleaded for getting the relief originally claimed in the suit had been made in the plaint. The Court in those cases observed that for granting the relief which has been claimed, the facts have already been pleaded and in those circumstances the Court might allow the amendment. Section 3(2)(b) of the Limitation Act, inter alia, states as follows :
"Section 3(2)(b) any claim by way of a set-off or a counter claim, shall be treated as a separate suit and shall be deemed to have been instituted--(i) in the case of a set-off, on the same date as the suit in which the set-off is pleaded;"
11. Therefore, any claim by way of a set-off shall be treated as a separate suit and shall be deemed to have been instituted in which the set-off is pleaded. By that analogy if the application for amendment is allowed, the same will result in allowing a claim of set-off in the year 2000, when the suit was instituted in February, 1995 and the written statement was filed in November, 1995. Allowing of such amendment will extend the period of limitation in filing of the suit. The amendment sought for is beyond the period of limitation. The defendant cannot be permitted to amend written statement so as to make a claim of set-off for the recovery of the said amount after the expiry of the period of limitation. The application is accordingly dismissed.
12. Dismissed. Suit No. 2/95
List this matter before Joint Registrar on 20.8.2001 for direction.
