1606D

IN THE

LEARNED DISTRICT COURT OF KISHANGARH

AT KISHANGARH

IN THE MATTER OF

MR. PUSHPENDRA

PLAINTIFF

v.

X AND Y

DEFENDANTS

CIVIL APPEAL NO.: XXX/2018

[UNDER SECTIONS 6, 9, 15, 16 AND 20 OF THE CODE OF CIVIL PROCEDURE, 1908.]

MEMORIAL ON BEHALF OF THE DEFENDANTS

Index of Authorities ............................................................................................................... iii

Statement of Facts ................................................................................................................... iv

Statement of Jurisdiction ....................................................................................................... vi

Issues for Consideration ........................................................................................................vii

Summary of Arguments ...................................................................................................... viii

Arguments Advanced .............................................................................................................. 1

I. The counter-claim filed by the Defendants is maintainable under the provisions

of the Code of Civil Procedure. ........................................................................................... 1

A. The Requisites of filing a Counter-Claim have been satisfied by the defendants.... 2

B. Relation with the original cause of action of plaintiff is not a requisite. ................ 2

C. The Counter Claim is not barred by the law of limitation....................................... 4

PRAYER ................................................................................................................................... 5

ii
 INDEX OF AUTHORITIES

Cases

Amichand Pyarelal v Union of India, 197 79 Bom LR 1 .......................................................... 1

Gurbachan Singh v Bhag Singh & Ors 1996 AIR 1087 ............................................................ 2

K Ramchandra Rao v P Narayan AIR 201 AP 276 ................................................................... 4

Laxmidas Dahyabhai Kabarwala v. Nanabhai Chunilal Kabarwala and Ors. AIR 1964 SC 11 3

Ramesh Chand v. Anil Panjwani, (2003) 7 SCC 350 ................................................................ 3

Sh. Jag Mohan Chawla & Anr v Dera Radha Swami Satsang & Ors AIR 1996 SC 2222 ........ 3

Syed Mohamed & Another v Nabisath Beevi & Anr. 2000 (3) CTC 5 ..................................... 4

Statutes

The Code of Civil Procedure, 1908 ........................................................................................... 1

Other Authorities

Black’s Law Dictionary (9th Edition, 2009)............................................................................... 2

Law Commission of India, 27th Report, 1964 ............................................................................ 2

Treatises and Books

C.K. Takwani, Civil Procedure and Law of Limitation, 1963, 7th Edn. .................................... 1

Concise Oxford Dictionary (2002) ............................................................................................ 1

Halsbyry’s Laws of England, (4th Edn.) Vol. 42 ....................................................................... 3

iii
 STATEMENT OF FACTS

I. Mr. Pushpendra and Mr. Jai Kamal were partners in a business which had commenced in

1973 under the name and style of Fit Plus Medical and Pharma Store at Kishangarh. The

two partners had equal shares in the business.

II. During the subsistence of the partnership and from and out of the assets thereof an

immovable property, a house, was purchased at Kishangarh in July 1982.

III. Jai Kamal died on May 2, 1986 but the partnership business was continued thereafter by

the plaintiff taking in Ram Dulari Devi- the widow of the deceased partner-in his place. A

change was, however, made in the shares of the two partners, in that Ram Dulari Devi

was given only a 1/4th share as against the half share enjoyed by her husband.

IV. In the early part of 1990 Ram Dulari Devi fell ill. After this there were negotiations

between the two partners as regards the winding up of the firm and it is stated by plaintiff

that on September 9, 1992 two matters were the subject of a concluded agreement with

her.

V. These were: (1) that the partnership would stand dissolved from November 10, 1995 and

that Ram Dulari Devi would receive from the plaintiff a sum of Rs. 50,000 /- in full

satisfaction in respect of the capital contributed by her as well as for her share of the

profits of the firm, (2) That the plaintiff was to take over the immovable property in

Kishangarh purchased by the firm in July, 1982 for its book value and that he should on

that account pay over to Ram Dulari Rs. 4 lacs being the book value.

VI. The agreement was stated to be wholly oral and was not reduced to writing. Before,

however, anything was done in pursuance of the alleged arrangement, Ram Dulari died

on October 25, 1991 leaving as her heirs who were the sons of a younger brother of Jai

Kamal.

iv
VII. After the death of Ram Dulari, his husband’s brother’s sons denied about such

agreement, if at all existed and insisted upon their rights under the law as legal

representatives of the deceased partner.

VIII. The plaintiff filed a suit for enforcing the agreement.

IX. To this suit the defendants filed a Written Statement which was mainly concerned with

denying the truth of the agreement with Ram Dulari and the story regarding the

subsequent confirmation by themselves and they wound up the statement by a counter-

claim

X. The plaintiff thereafter filed a reply to the counter-claim and of the contentions raised in

this reply it is sufficient if at this stage we notice the plea that a counter-claim was not

legally maintainable and they prayed for the dismissal of the counter-claim with costs.

Hence, the present case before this Learned District Court

v
 STATEMENT OF JURISDICTION

The Defendant most humbly and respectfully submits that this Learned District Court of

Kishangarh at Kishangarh has the requisite jurisdiction to hear and adjudicate the present

matter under Sections 6, 9, 15, 16 and 20 of the Code of Civil Procedure, 1908.

vi
 ISSUES FOR CONSIDERATION

Issue 1: Whether the counter claim of the defendants is maintainable under the Code of Civil

Procedure, 1908?

vii
 SUMMARY OF ARGUMENTS

Issue 1: Whether the counter claim of the defendants is maintainable under the Code of

Civil Procedure, 1908?

The counter-claim filed by the defendants is maintainable under Order VIII Rule 6A of the

Code of Civil Procedure, 1908. The claim of the plaintiff that is not well-founded in law as

the counter-claim fulfils all the essentials as prescribed by law for it to be admissible.

viii
 ARGUMENTS ADVANCED

I. THE COUNTER-CLAIM FILED BY THE DEFENDANTS IS MAINTAINABLE UNDER

THE PROVISIONS OF THE CODE OF CIVIL PROCEDURE.

A counterclaim is defined as a claim made by the defendant in a suit against the plaintiff.1 It

is a cause of action in favor of the defendant against the plaintiff.2 Order 8, Rule 6 (A) (1) of

the Code of Civil Procedure, 1908 (‘CPC’) as amended in 1976 reads:

"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 deliver his defense or

before the time limited, for delivering his defense 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 pecuniary limits of jurisdiction

of the Court."3

Thus, a counterclaim is essentially a substantive cross-action.4 Rules 6-A to 6-G of Order

VIII of CPC, deal with the subject matter of counter claim, were introduced by

the Amendment Act of 1976. The Law Commission of India as a recommendation in its 27th

Report (1964) on CPC, to avoid multiplicity of the proceedings gave right to the defendants

to raise the plea of set-off in addition to a counter-claim in Rule 6 in the same suit

irrespective of the fact whether the cause of action for counter-claim or set-off had accrued to

1
C.K. Takwani, Civil Procedure and Law of Limitation, 1963, 7 th Edn., 2016
2
Concise Oxford Dictionary (2002) at p. 325
3
Order 8 Rule 6-A, The Code of Civil Procedure, 1908
4
Amichand Pyarelal v Union of India, 197 79 Bom LR 1

1
the defendant either before or after the filing of the suit.5 It is also defined as ‘a claim set up

and urged by the defendant in opposition to or reduction of the claim presented by the

plaintiff’.6

A. The Requisites of filing a Counter-Claim have been satisfied by the

defendants.

CPC provide for certain specific conditions which need to be fulfilled and hence, lay down

the rules regarding Counter Claim in Order 8, Rule 6A-6G and there are as follows:

(a) The counter claim must be filed before the defendant has delivered his defence or

before the time limited for delivering his defence has expired.

(b) The counter claim must be stated specifically in the written statement.

(c) It should not exceed the pecuniary limits of jurisdiction.

(d) The plaintiff has to file a reply to the counter claim.

In the present case, all the four requirements have been taken care of and consequently

fulfilled. Firstly, the counter claim was filed at the first instance with the written statement;

secondly, it was specifically mentioned in the written statement.7 Lastly, the Plaintiff duly

filed the reply in the present case.8

B. Relation with the original cause of action of plaintiff is not a requisite.

Before the enactment of the amendment in 1976, it was a settled law that except in a money

claim, counter claim or set-off cannot be set up in other suits.9 In the celebrated case of

5
Law Commission of India, 27th Report, 1964
6
Black’s Law Dictionary (9th Edition, 2009)
7
¶ 6, line 4.
8
Id, at 7.
9
Gurbachan Singh v Bhag Singh & Ors 1996 AIR 1087

2
Laxmidas Dahyabhai Kabarwala v Nanabhai Chunilal Kabarwala and Ors.,10 the facts of

which are similar to the facts of the present case, the Supreme Court held that the right to

make a counter claim is statutory and the defendants were allowed in that case to file a

counter claim written statement, not only denying the settlement of accounts but also made a

counter-claim in the written statement for the rendition of accounts against the appellant.11 It

has to be noted here that the aforementioned case was decided upon before the amendment

came into force.

Also, when the plaintiff has a claim against the defendant and the plaintiff so brings an action

in furtherance of the claim, and the defendant has a cross claim against the plaintiff which by

law he is entitled to raise against the plaintiff, then the defendant reserves a right to counter

claim against the plaintiff.12 In the present case, because the plaintiff called for a relief which

the defendants believed to have existed the other way, the defendants have the right to file a

counter claim in the case.

Even in cases decide after this amendment, the courts have held that ‘the language of the

relevant rule is so couched with words of wide width as to enable the parties to bring his own

independent cause of action in respect of any claim that will be subject matter of independent

suit’.13 Their Lordships had further held that, the cause of action need not relate to or be

connected to original cause of action or matter pleaded by plaintiff. In the judgment, their

Lordships declared the law thus:14

"... The words any right or claim in respect of a cause of action accruing with the

defendant" would show that the cause of action from which the counter-claim arises

need not necessarily arise from or have any nexus with the cause of action of the

10
Laxmidas Dahyabhai Kabarwala v. Nanabhai Chunilal Kabarwala and Ors. AIR 1964 SC 11
11
Id
12
Halsbyry’s Laws of England, (4th Edn.) Vol. 42, para 407
13
Ramesh Chand v. Anil Panjwani, (2003) 7 SCC 350.
14
Sh. Jag Mohan Chawla & Anr v Dera Radha Swami Satsang & Ors AIR 1996 SC 2222

3
 plaintiff that occasioned to lay the suit. The only limitation is that the cause of action

should arise before the time fixed for filing the written statement expires."15

So, for example, in a suit for injunction, a counter claim for possession could also be

maintained.16 In another case where the plaintiff had filed a suit for civil damages caused due

to defamatory statements made by defendant and the defendant had set up a counterclaim for

recovery of losses suffered by him because of the refusal of the plaintiff to return his tractor

trailor and other agricultural instruments, the court held that such a counter claim was

maintainable even though it was based on a different cause of action which accrued to the

defendant before the filing of the written statement.17

Thus, we can conclude that even a counter claim which does not have a nexus with the claim

of the plaintiff can still be raised in a written suit and is maintainable.

C. The Counter Claim is not barred by the law of limitation.

The plaintiff in the present suit cannot contend that the counter claim is barred by law. Where

a counter-claim is so treated as plaint in the cross-suit, the plaint must be deemed for the

purposes of the law of limitation to have been filed on the day the court made the order

permitting it to be so treated.18

The present suit is not barred by limitation act because the counter-claim was filed along with

the written statement and the date of filing of counter-claim is considered for the purpose of

putting a bar and not the date of the acceptance by the court of the written statement as a

counterclaim. Thus, a counter claim is maintainable in the present suit under the relevant

provisions of the Code of Civil Procedure, 1908.

15
Id
16
Syed Mohamed & Another v Nabisath Beevi & Anr. 2000 (3) CTC 5
17
K Ramchandra Rao v P Narayan AIR 2001 AP 276
18
Supra Note 10

4
 PRAYER

Wherefore in the light of facts states, issues raised, arguments advanced and authorities cited,

it is most respectfully and humbly prayed before this Learned District Court of Kishangarh at

Kishangarh to:

1. Dismiss the Suit no. XXX/2018.

2. Declare that the counter claim is maintainable.

And pass any other order in favour of the Defendant which this Court may so deem fit in the

ends of justice and good conscience.

All of which is most humbly and respectfully prayed

Place: Kishangarh Counsel No. 1606D

Date: September 13th, 2018 Counsel for the Defendants