Dismissed

K. Sheela v. State Bank of Travancore

Kerala HC15 Feb 2022RFA/498/2013

Case brief

AI extract

What is this about?

This Regular First Appeal questions the trial court's dismissal of a counter claim where an additional third party was impleaded as a counter claim defendant. The High Court held that impleading a third person as a counter claim defendant is impermissible under Order VIII CPC, as a counter claim lies only against the plaintiff. However, the court found the adjudication binding due to evidence led

What did the court decide?

Dismissed the appeal and upheld the dismissal of the counter claim.

K. Sheela Vs State Bank of Travancore — Contract and Commercial Disputes | Kerala HC (2022)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE P.SOMARAJAN

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TUESDAY, THE 15^TH DAY OF FEBRUARY 2022 / 26TH MAGHA, 1943

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RFA NO. 498 OF 2013

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( AGAINST THE COMPOSITE DECREE AND JUDGMENT DATED 20/12/2012 IN O.S.NO.133/2007 AND THE COUNTER CLAIM THEREIN ON THE FILE OF THE SUB

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COURT, CHERTHALA)

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APPELLANT/DEFENDANT/COUNTER CLAIM PLAINTIFF IN THE COURT BELOW:

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K. SHEELA

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AGED 43 YEARS W/O.BABUKUTTAN, PROPRIETRIX, M/S.GREENMARK FERTILIZERS, KANDACHAM PARAMBU,CHARAMANGALAM, MUHAMMA P O, CHERTHALA TALUK ALAPPUZHA DIST

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BY ADVS. DR.V.N.SANKARJEE SRI.V.N.MADHUSUDANAN

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RESPONDENT/PLAINTIFF/COUNTER CLAIM DEFENDANT IN THE COURT BELOW):

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1 STATE BANK OF TRAVANCORE

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REP BY ITS MANAGER, MUHAMMA BRANCH, MUHAMMA P O, CHERTHALA, ALAPPUZHA DISTRICT-688525

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2 DIRECTOR

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KHADI VILLAGE & INDUSTRIES COMMISSION, STATE OFFICE, GRAMODAYA, M G ROAD, THIRUVANANTHAPURAM-695001

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BY ADVS.

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SRI.T.RAJASEKHARAN NAIR FOR R2

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THIS REGULAR FIRST APPEAL HAVING COME UP FOR HEARING ON 15.02.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

RFA No.498 of 2013

JUDGMENT

The sole defendant in a suit for recovery of money

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came up in appeal aggrieved by the dismissal of the counter claim. The suit was decreed granting recovery of the amount due to the plaintiff/Bank - State Bank of Travancore. The defendant submitted her written statement by raising a counter claim by impleading the counter claim defendant No.1 and 2 and claimed that the counter claim 2^nd defendant is bound to grant 30% of the loan amount as margin money. The trial court thereon has given a separate cause title to the counter claim as counter claim plaintiff and defendant by impleading an additional party, the counter claim 2^nd defendant and proceeded to consider both the suit and the counter claim and rendered a judgment and decree. It is under challenge by the sole defendant in the suit, who is the counter claim plaintiff on the reason that the trial court ought to have granted a decree allowing the counter claim as against the counter claim

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RFA No.498 of 2013 3

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defendants i.e. the original plaintiff in the suit and the additional party, the counter claim 2^nd defendant.

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It appears that the trial court has committed a

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grave mistake by impleading an additional party as counter claim 2^nd defendant for the purpose of adjudicating the counter claim. It is not permissible to implead a third person for the purpose of adjudicating a counter claim. On the other hand, the counter claim raised should be within the four corners of Rule 6A of Order VIII C.P.C., which is extracted below for reference:

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“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:

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Provided that such counter-claim shall not exceed the pecuniary limits of the jurisdiction of the Court.

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(2) Such Counter-claim shall have the same effect as a

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RFA No.498 of 2013

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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.

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(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.

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(4) The counter-claim shall be treated as a plaint and governed by the rules applicable to plaints.”

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In order to maintain a counter claim (1) it should

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be against the plaintiff (2) it should be on a cause of action accrued 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 (3) it should not exceed

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the pecuniary limits of the jurisdiction of that court. There is no provision for impleading any person as counter claim defendant. The counter claim should be against the plaintiff and shall not be against any other person, who is not in the party array of the suit. Further, no counter

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claim can be raised between the co-defendants, unless adjudication of such counter claim or dispute between the

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RFA No.498 of 2013 5

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co-defendants is necessary for the fair determination of the issues involved in the suit between the plaintiff and

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the defendant. This would make the legal position clear that a counter claim can only be raised against the plaintiff/plaintiffs in the suit and not against a third person or a stranger and for that purpose, no third person or stranger can be impleaded as an additional counter claim defendant.

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The counter claim should be treated as a plaint and governed by the rules applicable to the plaint by virtue of sub-rule(4) of Rule 6A of Order VIII C.P.C. But, that provision should be read as an enabling provision, subject to the restriction and limitations incorporated

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under sub-rule (1) to (3). Further, the court cannot

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exercise its jurisdiction under sub-rule(2) of Rule 10 of Order I C.P.C., either to strike out or to add any party in a counter claim, though it is permissible in the suit. To deal with the abovesaid situations viz., either to strike

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out or add parties by exercising the jurisdiction under

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Order I Rule 10 C.P.C. or to implead an additional party

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RFA No.498 of 2013

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as counter claim defendant, except in the case of any such necessity to implead for fair determination of suit matter, the court has to exclude the counter claim by a specific order under Rule 6C of Order VIII C.P.C. by permitting the defendant to go for a separate suit in that behalf. In short, at the instance of defendant, who had raised the counter claim, there cannot be any impleadment of an additional party either as a counter claim defendant or otherwise except under Order XXII C.P.C.. Hence, the

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impleadment of additional counter claim defendant by the trial court is so erroneous and is legally unsustainable. The trial court dismissed the counter claim on the reason that the scheme for allowing 30% of the margin money was closed by the time when the loan was sanctioned and the claim was raised. In fact, the trial court ought to have excluded the counter claim as it is against a third person, who was impleaded as counter claim defendant No.2 so that the defendant can go for a suit against the said counter claim defendant No.2. But, evidence was adduced by both the parties fully knowing the dispute involved in the counter claim and a judgment was rendered. Hence, the adjudication

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RFA No.498 of 2013 7

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rendered is binding on both the parties. The counter claim was dismissed on its merit on the ground that the scheme

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settled has elapsed as on the date of loan transaction and the claim and as such,there is nothing to interfere with the judgment and decree of the trial court dismissing the

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counter claim. Hence, the appeal fails, dismissed.

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Sd/-

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P.SOMARAJAN JUDGE

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K. Sheela v. State Bank of Travancore

Case brief

What is this about?

What did the court decide?

K. Sheela v. State Bank of Travancore

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

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