The High Court of Kerala dismissed an appeal challenging a Single Bench judgment that allowed a counter-claim for loss of subsidy. The court held that Order 8 Rule 6A of the CPC permits a counter-claim distinct from the plaintiff's cause of action and affirmed the trial court's finding of loss.
Appeal dismissed; no costs.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
THE HONOURABLE MR.JUSTICE V.CHITAMBARESH
THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH
MONDAY, THE 19TH DAY OF MARCH 2018 / 28TH PHALGUNA, 1939
AFA.No. 17 of 1999
AGAINST THE ORDER/JUDGMENT IN AS 566/1990 of HIGH COURT OF KERALA DATED 11-03-1998
AGAINST THE ORDER/JUDGMENT IN OS 176/1986 of ADDL.SUB COURT, KOCHI DATED 29-10-1988
APPELLANT/RESPONDENT/PLAINTIFF
P.V.GEORGE THARAKAN AND COMPANY,
A PARTNERSHIP FIRM REPRESENTED BY THE MANAGING PARTNER MRS.THANDAMMA THARAKAN, WHEEL HOUSE, HARBOUR ROAD, WILLINGDON ISLAND, KOCHI 682 003
BY ADVS.SRI.K.P.VIJAYAN SRI.BOBY MATHEW
RESPONDENT(S)/APPELLANT/DEFENDANT:
M/S.SOUTH INDIA WIRE ROPES LIMITED, A COMPANY INCORPORATED UNDER THE COMPANIES ACT HAVING ITS PRINCIPAL PLACE OF BUSINESS AT EDATHALA, ALWAYE
BY ADVS. SRI.P.VISWANATHAN
SRI.DINESH R.SHENOY SRI.K.MONI, OFFICIAL LIQUIDATOR,SOUTH INDIA WIRE ROPES LTD.
THIS APPEAL FROM FIRST APPEAL HAVING BEEN FINALLY HEARD ON 13-03-2018, THE COURT ON 19.3.2018 DELIVERED THE FOLLOWING:
SHG/
V. CHITAMBARESH & K.P. JYOTHINDRANATH, JJ.
- - - - - - - - - - - - - - - - - - - - - - -
A.F.A.No.17 of 1999
- - - - - - - - - - - - - - - - - - - - - - - Dated this the 19th day of March, 2018
J U D G M E N T
Jyothindranath, J.
In this appeal, the challenge is against a Single Bench judgment, by which, a counter claim was allowed.
A money suit was filed by the appellant herein to realise a sum of Rs.36,027-58. The case of the appellant/plaintiff therein was that the defendant company engaged the plaintiff as their clearing and forwarding agent for the export of 31 reels of steel wire ropes to Odessa, U.S.S.R., undertaking to pay the usual charges for the same. It was exported by the vessel “S.S.VISWA ASHA” on 18.5.1984. It is the case that immediately after the export,
the bills of lading and other relevant export documents were handed over to the defendant by the plaintiff in utmost good faith that the defendant would duly settle the
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plaintiff's bill for the charges for receiving, forwarding and shipping the said 31 reels of steel wire ropes to Odessa. Their case is that only a sum of Rs.8154-07 was paid on 13.6.1984 by the defendant towards the bill amount. Hence, the money suit for the above balance amount.
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above shipments. It is further stated that the plaintiff ought to have handed over the said documents to the defendant to enable it to submit it's claim before the excise authorities. The defendant was entitled to receive cash compensatory support at 12% on the F.O.B value of above said 54.574 M.T. exported. This amount could be claimed only on the basis of shipping (export promotion copy) produced before the authorities. As per Rules, duplicate of such documents could not be obtained. The plaintiff did not hand over the same in spite of demand made by the defendant and further it is stated that plaintiff is responsible to the defendant for the loss thus occasioned and further stated that the loss so sustained is Rs.55,685/-and the defendant is entitled to charge interest on the same @ 18% per annum. The defendant had made demands to the plaintiff to make good the loss so sustained.
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court in A.S.No.566/1990 by the defendant. The single Judge by its judgment dated 11.3.1998 allowed the appeal in part and the decree of the lower court was confirmed. But at the same time, the trial court judgment to the extent of dismissing the counter claim was set aside and defendant was granted a decree for Rs.55,685/- with interest @ 18% and also with cost. The said judgment of the single Judge is under challenge.
(i) Whether the defendant suffered loss of Rs.55,685/- on account of the failure of the plaintiff to handover the shipping bills?
Answering the said issue, the trial court found that "hence I found that the defendant has suffered loss of Rs.55,685/being the loss of subsidy. Issue is found in favour of the defendant". Thereafter considering the right of the
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defendant for a set off, the trial court held that:
“Therefore I find that the plaintiff is not made under an obligation to hand over the documents simultaneously when payment is effected. On the other hand as per the contractual obligation, the defendant is liable to pay the commission charges on shipment of goods. Therefore the loss if any sustained by the defendant on account of the failure to preview a claim for subsidy cannot be set off against the plaintiff's claim. Issue is found in favour of the plaintiff .”
This finding was considered by the single Judge. Considering the ambit of Order 8 Rule 6 of C.P.C., the trial court's finding on this aspect was set aside stating that the counter claim in respect of a legally recoverable, ascertainable sum within the pecuniary limits of the jurisdiction of the court which tried the suit is sustainable.
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handed over the export documents required to claim the subsidy. It is to be remembered that the plaintiff is none other than C and F agent of the defendant. The ground on which the trial court declined to grant relief sought in the counter claim was found incorrect by the single Judge.
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 the 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
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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.
When the defendant is legally entitled to raise the counter claim raised in his written statement and when there is a finding that defendant suffered a loss of Rs.55,685/- which became final, there is nothing to interfere with the judgment of the single Judge. Hence there is no
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merit in the appeal. Hence the appeal is dismissed. No
costs.
V. CHITAMBARESH
JUDGE
K.P. JYOTHINDRANATH JUDGE
shg/
2 issues framed by the court
Whether the scope of Order 8 Rule 6 of the Code of Civil Procedure allows a defendant to raise a counter-claim arising from a cause of action different from the plaintiff's claim.
Whether the trial court's finding that the defendant suffered a loss of Rs.55,685/- due to loss of subsidy could be set off against the plaintiff's claim for clearing and forwarding charges.
2 provisions across 1 enactments
P.V.George Tharakan and Company
M/s.South India Wire Ropes Limited
V. Chitambaresh
K.P. Jyothindranath
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
