TaxTMI 
TaxTMI 
2025 (6) TMI 1515
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....uary, 2020 and the said report is also disclosed in the written statement. 4. Mr. Banerjee submits that the defendant has not introduced any new case or changed the nature and character of the written statement. He submits that the counter claim arises out of the same set of transactions as alleged in the plaint. 5. Mr. Banerjee submits that the defendant has already mentioned the facts leading to the counter claim in the written statement. He submits that the Charted Accountant has ascertained the compensation of Rs. 1,09,73,340/- which the defendant is entitled to receive from the plaintiff. He submits that before filing of the present application, the defendant has initiated pre-institution mediation process but the plaintiff failed to appear in the mediation process and after receipt of non-starter report, the defendant has filed the present application. 6. Mr. Sankarsan Sarkar, Learned Advocate representing the plaintiff submits that on perusal of the proposed amendment, it appears that the defendant seeks to introduce a counter claim which was already available to the defendant since 3rd February, 2020 that is the date of the report of Charted Accountant, thus the counter ....
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....e financial loss to the defendant. Again in the year 2019, a large area of tea plantation and substantial area of tea crop got infected and ruined the tea crops resulting in huge financial loss to the defendant. Such incidents made the defendant suspicious with regard to the effectiveness 'Miteshot' supplied by the plaintiff. The defendant called upon the plaintiff and informed same to the director of the plaintiff namely Mr. Kailash Dhaundiyal. Sometime in May 2019, the plaintiff sent its representative Mr. Ishan Dhaundiyal, being the son of Mr. Kailash Dhaundiyal, to the tea state of the defendant to see and inspect the recurring damage of the crops from the pest attack. It is pertinent to mention hearing that the representative of the plaintiff acknowledged and admitted that 'Miteshot' was not effective in controlling the pest resulting in huge loss. i) Upon a detailed enquiry it came to the notice of the defendant that 'Miteshot' was not a chemical to be used against pests and the same was not meant for the protection of tea plantation. j) Thereafter, the defendant returned the balance chemical of 'Miteshot' brand to the plaintiff in May 2019....
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....the Learned National Company Law Tribunal, Kolkata Bench, Kolkata by filing an application under section 9 of the Insolvency and Bankruptcy Code, 2016 being CP (IB) No.138/KB/2020. By an order dated 12th September, 2022 the Learned Tribunal was pleased to dismiss the said application. The plaintiff thereafter preferred an appeal against the order dated 12th September, 2022 before the National Company Law Appellate Tribunal Principal Bench, New Delhi Company Appeal (AT) (Ins.) No. 1536 of 2022. By an order dated 2nd January 2023, the Learned Appellate Tribunal was pleased to dismiss the appeal as withdrawn. A copy of the order dated 2nd January, 2023 is annexed hereto and marked with the letter "F". 14. The contents of the notice dated 22nd November, 2019 are false, frivolous and incorrect and ought not to be relied upon. The said letter was duly replied by the defendant by way of a letter dated 11th December 2019, a copy whereof is annexed hereto and marked with the letter "I", refuting the allegations made therein and further making a counterclaim of Rs. 90, 00, 000/- along with interest @ 18% per annum on account of loss and damages suffered by the defendant for the reasons sta....
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.... 26,08,36,292/- including interest thereon @18% per annum. Such rate of interest is reasonable in the circumstances. Alternatively, this Hon'ble Court is empowered to conduct an enquiry and ascertain the actual quantum of loss and damage suffered by the defendant due to the conduct of the plaintiff and award equivalent compensation thereof to the defendant along with reasonable interest thereon. 19. The defendant has exhausted the pre- institution mediation prescribed under Section 12(A) of the Commercial Courts Act, 2015. The parties have not been able to resolve the disputes through mediation as will appear from the report dated 28th November, 2024, issued by the Mediation Centre, a copy whereof is annexed hereto and marked with letter "K". 20. The defendant submits that it could not institute the present counter claim earlier due to the effects of the Covid-19 pandemic and seeks exemption for the delay, if any. As such, no part of the defendant's claim is barred by limitation. 21. For the purpose of jurisdiction, the counter claim is valued at over Rs. 1 Crore and as such the Commercial Division of this Hon'ble Court is empowered to receive, try and determine t....
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....tatement within the said period of thirty days, he shall be allowed to file the same on such other days as may be specified by the Court, for reasons to be recorded in writing, but which shall not be later than ninety days from the date of service of summons. (2) A defendant to whom a summons has been issued under sub-rule (1) may appear- (a) in person, or (b) by a pleader duly instructed and able to answer all material questions relating to the suit, or (c) by a pleader accompanied by some person able to answer all such questions. (3) Every such summons shall be signed by the Judge or such officer as he appoints, and shall be sealed with the seal of the Court." 15. The defendant has not filed written statement within the prescribed period of 30 days but on an application filed by the defendant, this Court allowed the defendant to file written statement. This Court has granted leave to file written statement within the outer period of 120 days and the same is filed within the said period, thus this Court is of the opinion that the plaintiff cannot take benefit of proviso of Order VIII, Rule 10 of the CPC. Similarly, the plaintiff also cannot take the benefit of the provi....
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....ss the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before commencement of trial. Under Order VIII, Rule 6-A of the Code of Civil Procedure, 1908, time for filing of counter claim is not explicitly provided by the legislature. Only limitation as to the accrual of cause of action is provided. 18. In the case of Ashok Kumar Kalra vs. Wing CDR. Surendra Agnihotri & Ors. reported in (2020) 2 SCC 394, the Hon'ble Supreme Court held that: "21. We sum up our findings, that Order 8 Rule 6-A CPC does not put an embargo on filing the counterclaim after filing the written statement, rather the restriction is only with respect to the accrual of the cause of action. Having said so, this does not give absolute right to the defendant to file the counterclaim with substantive delay, even if the limitation period prescribed has not elapsed. The court has to take into consideration the outer limit for filing the counterclaim, which is pegged till the issues are framed. The court in such cases have the discretion to entertain filing of the counterclaim, after taking into consideration and evaluating inclusive factors provided below which ....
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....defendant has filed the present application on 11th December, 2024. 22. The defendant has made initial claim of Rs. 90,00,000/- from plaintiff through its reply dated 11th December, 2019. The defendant relied upon the judgment passed by the Hon'ble Supreme Court in the case of SUO MOTU WRIT PETITION (C) NO. 3 OF 2020 dated 10th January, 2022 wherein the Hon'ble Supreme Court held that: "5. III. In cases where the limitation would have expired during the period between 15.03.2020 till 28.02.2022, notwithstanding the actual balance period of limitation remaining, all persons shall have a limitation period of 90 days from 01.03.2022. In the event the actual balance period of limitation remaining, with effect from 01.03.2022 is greater than 90 days, that longer period shall apply." 23. The Coordinate Bench of this Court in the case of Qamrul Hoda Vs. Md. Wakil Khan & Ors. reported in 2011 SCC OnLine Cal 1831 held that : "The amendment sought could not be declined. The dominant purpose of allowing the amendment is to minimize the litigation. The plea that the relief sought by way of amendment was barred by time is arguable in the circumstances of the case. The plea of limitation b....