The contentions of the learned counsel appearing for the
respondents based on the Supreme Court judgments and the
judgments of this Court with regard to the grant or refusal of
amendment, at such stage of proceeding, and the counter claim is
beyond the limitation; there is no question of entertaining such
amendment application, are not acceptable for the reasons referred
above. However, this in no way read to mean that the counter claim
so raised is decided finally in favour of the petitioner. The trial Judge
is required to deal with the same in accordance with law. Therefore,
merely because suit/claim raised by the bank was dismissed/disposed
of for want of prosecution, that itself cannot be the reason to deny
the counter claim raised by the petitioner at this stage. Therefore, in
the present facts, I am not inclined by accept the submission that the
suit claims/counter claims ought not to have been allowed.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.10523 OF 2013
Shri Girish Manohar Mokashi V/s The Dombivli Nagari Sahakari Bank Ltd
CORAM : ANOOP V. MOHTA, J.
DATE : FEBRUARY 11, 2015
Citation; 2015(5) ALLMR 804
Rule returnable forthwith. Heard finally.
1) The petitioneroriginal respondent No.2 has challenged
the order dated 05 September, 2013 passed by the learned President,
Maharashtra State Cooperative Appellate Court, thereby allowing
the appeal filed by the respondentbank. The order passed by the
Trial Judge is set aside and the application Exhibit 36 i.e. for the
amendment to bring the counter claim is rejected.
2) A Suit was filed by the bank in the year 1995. The
petitioner filed reply/written statement on 18 December, 2009. On
24 March, 2011, a pursis filed by the bank for withdrawal of the
claims. The petitioner, therefore, in the background taking note of
sudden stand taken by the bank to withdraw the suit, beside
justifying the amendment application covering the counter claim
based on the events and the pleadings placed on record referring to
the claims as well as defences so raised, filed the amendment
application on 25 August, 2011.
3) After hearing both parties, the amendment application
was allowed on 20 December, 2012. The petitioner carried out the
amendment on 03 January, 2014 itself. The appeal was filed on 18
February, 2013. By impugned order dated 05 September, 2013, the
appeal was allowed and thereby rejected the amendment/counter
claim application filed by the petitioner. There is no issue that
pending the writ petition, on 06 December, 2013, the respondent's
claim/dispute was dismissed for nonprosecution with reasoned
order. This background supports the case of the petitioner with
regard to the grant of amendment as done by the court below for the
reasons so stated apart from the undisputed position on record, so
referred above.
4) The claim was raised and the defence so filed at an
appropriate time could have been decided in accordance with law,
which was also in the background of payment of Rs.1,01,300/ on 11
June, 1982. There is no denial to the fact that the averments are
raised in the written statement in this regard. The already filed
written statement, in no way debars the petitioner to continue with
the defences and the counter claims so raised, in the situation that
the bank itself decided to withdraw the suit. Admittedly, the pursis
of withdrawal of the suit was also dismissed and lateron, the
dismissal of suit for nonprosecution itself is an additional factor
which goes in support of the petitioner, the intention of the bank was
clear not to defend the case of earlier payment by the petitioner,
apart from, not supplying the documents asked for the relevant time,
not to prosecute and proceed further, in view of the specific
plea/defence so raised in the written statement. The pursis was filed
after the filing of the written statement by the petitioner.
5) The contentions of the learned counsel appearing for the
respondents based on the Supreme Court judgments and the
judgments of this Court with regard to the grant or refusal of
amendment, at such stage of proceeding, and the counter claim is
beyond the limitation; there is no question of entertaining such
amendment application, are not acceptable for the reasons referred
above. However, this in no way read to mean that the counter claim
so raised is decided finally in favour of the petitioner. The trial Judge
is required to deal with the same in accordance with law. Therefore,
merely because suit/claim raised by the bank was dismissed/disposed
of for want of prosecution, that itself cannot be the reason to deny
the counter claim raised by the petitioner at this stage. Therefore, in
the present facts, I am not inclined by accept the submission that the
suit claims/counter claims ought not to have been allowed.
6) The power of Appellate Authority, though not limited or
restricted, the grant of amendment order passed by the Trial Court in
the background, cannot be stated to be perverse and illegal.
Therefore, in the interest of justice, by keeping all the
defences/points open for the respondentbank to including the issue
of limitation, I am inclined to interfere with order dated 05
September, 2013 and order accordingly.
7) For the reasons so stated above and for the reasons so
mentioned by the Trial Judge, order below Exhibit 36 dated 20
December, 2012 is restored by granting the amendment application.
Thus, the following order.
: ORDER :
1. Quash and set aside order dated 05 September, 2013, order
below Exhibit 36 dated 20 December, 2012 granting the
amendment application is maintained.
2. All points are kept open including of limitation.
3. Petition is accordingly allowed.
4. No costs.
( ANOOP V. MOHTA, J. )
Print Page
respondents based on the Supreme Court judgments and the
judgments of this Court with regard to the grant or refusal of
amendment, at such stage of proceeding, and the counter claim is
beyond the limitation; there is no question of entertaining such
amendment application, are not acceptable for the reasons referred
above. However, this in no way read to mean that the counter claim
so raised is decided finally in favour of the petitioner. The trial Judge
is required to deal with the same in accordance with law. Therefore,
merely because suit/claim raised by the bank was dismissed/disposed
of for want of prosecution, that itself cannot be the reason to deny
the counter claim raised by the petitioner at this stage. Therefore, in
the present facts, I am not inclined by accept the submission that the
suit claims/counter claims ought not to have been allowed.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.10523 OF 2013
Shri Girish Manohar Mokashi V/s The Dombivli Nagari Sahakari Bank Ltd
CORAM : ANOOP V. MOHTA, J.
DATE : FEBRUARY 11, 2015
Citation; 2015(5) ALLMR 804
Rule returnable forthwith. Heard finally.
1) The petitioneroriginal respondent No.2 has challenged
the order dated 05 September, 2013 passed by the learned President,
Maharashtra State Cooperative Appellate Court, thereby allowing
the appeal filed by the respondentbank. The order passed by the
Trial Judge is set aside and the application Exhibit 36 i.e. for the
amendment to bring the counter claim is rejected.
2) A Suit was filed by the bank in the year 1995. The
petitioner filed reply/written statement on 18 December, 2009. On
24 March, 2011, a pursis filed by the bank for withdrawal of the
claims. The petitioner, therefore, in the background taking note of
sudden stand taken by the bank to withdraw the suit, beside
justifying the amendment application covering the counter claim
based on the events and the pleadings placed on record referring to
the claims as well as defences so raised, filed the amendment
application on 25 August, 2011.
3) After hearing both parties, the amendment application
was allowed on 20 December, 2012. The petitioner carried out the
amendment on 03 January, 2014 itself. The appeal was filed on 18
February, 2013. By impugned order dated 05 September, 2013, the
appeal was allowed and thereby rejected the amendment/counter
claim application filed by the petitioner. There is no issue that
pending the writ petition, on 06 December, 2013, the respondent's
claim/dispute was dismissed for nonprosecution with reasoned
order. This background supports the case of the petitioner with
regard to the grant of amendment as done by the court below for the
reasons so stated apart from the undisputed position on record, so
referred above.
4) The claim was raised and the defence so filed at an
appropriate time could have been decided in accordance with law,
which was also in the background of payment of Rs.1,01,300/ on 11
June, 1982. There is no denial to the fact that the averments are
raised in the written statement in this regard. The already filed
written statement, in no way debars the petitioner to continue with
the defences and the counter claims so raised, in the situation that
the bank itself decided to withdraw the suit. Admittedly, the pursis
of withdrawal of the suit was also dismissed and lateron, the
dismissal of suit for nonprosecution itself is an additional factor
which goes in support of the petitioner, the intention of the bank was
clear not to defend the case of earlier payment by the petitioner,
apart from, not supplying the documents asked for the relevant time,
not to prosecute and proceed further, in view of the specific
plea/defence so raised in the written statement. The pursis was filed
after the filing of the written statement by the petitioner.
5) The contentions of the learned counsel appearing for the
respondents based on the Supreme Court judgments and the
judgments of this Court with regard to the grant or refusal of
amendment, at such stage of proceeding, and the counter claim is
beyond the limitation; there is no question of entertaining such
amendment application, are not acceptable for the reasons referred
above. However, this in no way read to mean that the counter claim
so raised is decided finally in favour of the petitioner. The trial Judge
is required to deal with the same in accordance with law. Therefore,
merely because suit/claim raised by the bank was dismissed/disposed
of for want of prosecution, that itself cannot be the reason to deny
the counter claim raised by the petitioner at this stage. Therefore, in
the present facts, I am not inclined by accept the submission that the
suit claims/counter claims ought not to have been allowed.
6) The power of Appellate Authority, though not limited or
restricted, the grant of amendment order passed by the Trial Court in
the background, cannot be stated to be perverse and illegal.
Therefore, in the interest of justice, by keeping all the
defences/points open for the respondentbank to including the issue
of limitation, I am inclined to interfere with order dated 05
September, 2013 and order accordingly.
7) For the reasons so stated above and for the reasons so
mentioned by the Trial Judge, order below Exhibit 36 dated 20
December, 2012 is restored by granting the amendment application.
Thus, the following order.
: ORDER :
1. Quash and set aside order dated 05 September, 2013, order
below Exhibit 36 dated 20 December, 2012 granting the
amendment application is maintained.
2. All points are kept open including of limitation.
3. Petition is accordingly allowed.
4. No costs.
( ANOOP V. MOHTA, J. )
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