Prasenjit Mandal, J. - (1.) THIS application is at the instance of the defendant and is directed against the Order No.18 dated July 13, 8th 2007 passed by the learned Civil Judge (Senior Division), Court, Alipore in Money Suit No.29 of 2004 thereby rejecting an application for amendment of the written statement.
(2.) THE plaintiff / opposite party herein instituted a Money Suit being No.29 of 2004 against the defendant for recovery of a sum of Rs.6,80,000/- contending, inter alia, that the defendant approached the plaintiff in September 2001 for an accommodation loan and accordingly, the plaintiff game him Rs.4 lakh to help him to tide over his financial crises in connection with his different business along with terms of interest. THE defendant did not repay the entire amount and so, the suit was filed for recovery of money. The defendant is contesting the said suit by filing a written statement denying the material allegations raised in the plaint. He has totally denied the transactions and that no payment was made by the plaintiff and so, the question of repayment does not arise. The defendant has also contended that the plaintiff had suppressed that he made deposit of certain amount from time to time in the account of the plaintiff beside that he made payment in cash. Accordingly, the suit is not maintainable. Subsequently, the defendant filed an application for amendment of the written statement claiming counter-claim to the tune of Rs.2,44,000/- contending, inter alia, that he paid certain amounts in the bank account of the plaintiff and a cash payment of Rs.64,000/- and thus, he has made a counter-claim of Rs.2,44,000/- against the plaintiff. That prayer for counter-claim by way of the written statement was rejected by the impugned order. Being aggrieved, this application has been preferred.
(3.) I have considered the decision of Mahendra Kumar & anr. State of Madhya Pradesh & ors. reported in AIR 1987 SC 1395 filed by the petitioner to the effect that counter-claim may be filed within three years from the date of cause of action. Having considered the submission of the learned Advocates of both the sides and on perusal of the materials on record and the above decision, I am of the view that the learned Trial Judge has rightly rejected the application for amendment of the written statement or more to say the counter-claim. It may be recorded herein that the suit was filed on September 15, 2004 and the written statement was filed beyond the statutory period on September 21, 2005 and the said written statement was accepted. The proposed amendment was filed long time thereafter on May 17, 2007 and the proposed amendment is nothing but an afterthought matter. While the earlier defence stand is to the effect of total denial of the transaction and that the defendant made certain payments to the plaintiff by making deposits in the bank account of the plaintiff and a cash of Rs.64,000/-, the present application is nothing but an afterthought matter making a counter-claim and it is filed long after about one year and eight months from the date of filing the earlier written statement. The written statement was not filed within the time permissible under the Act but it was accepted on September 21, 2005. If the proposed amendment of the written statement is allowed, it is nothing but withdrawal of the admission as made earlier to the effect that he made payment to the plaintiff on different occasions. Therefore, the learned Trial Judge is quite within his jurisdiction in rejecting an afterthought defence.;