THE HONOURABLE SRI JUSTICE A.GOPAL REDDY and THE HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU W.P.No.16602 of 2005 Date of Order 21-10-2009 Between: 1. M/s.Radhika enterprises, rep. by its Managing Partner, K.Subba Rao and others. ..Petitioners and 1. The Bank of Maharashtra, Guntur Branch, Guntur, rep. by its Branch Manager and others. ..Respondents The Court made the following Order: THE HONOURABLE SRI JUSTICE A.GOPAL REDDY and THE HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU W.P.No.16602 of 2005 Oral Order: (Per Honourable Sri Justice A.Gopal Reddy) 1. Petitioner obtained a Rule from this Court calling upon the respondents to show cause why a writ in the nature of Certiorari cannot be issued under Article 226 of the Constitution calling for the records relating to the order dated 06-02-2004 passed in I.A.No.289 of 2003 in O.A.No.667 of 2002 on the file of the Debt Recovery Tribunal, Visakhapatnam as confirmed by the Debt Recovery Appellate Tribunal, Chennai in M.A.No.60 of 2004 dated 07-06-2005 and to quash the same. 2. The 1st respondent—bank filed a suit—O.S.No.103 of 1984 on the file of Principal Subordinate Judge, Guntur against the petitioners herein (defendants 1 to 3) and three others for recovery of an amount of Rs.19,68,658.84ps. with future interest at the contract rate till the realisation of the amount in which the petitioners herein filed their written statement. Later the said suit was transferred to II Additional District Judge, Guntur and renumbered as O.S.No.32 of 1991. On constitution of Debt Recovery Tribunal under the provisions of Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (for short “the Act”) the suit was transferred to Debt Recovery Tribunal, Bangalore, as the amount involved is more than 10 lakhs, but after constitution of Debt Recovery Tribunal at Hyderabad the case was transferred to Hyderabad and once again transferred to Debt Recovery Tribunal, Visakhapatnam and numbered as O.A.No.667 of 2002. 3. After completion of trial, written arguments were filed by the plaintiff—bank. At that stage the petitioners herein filed I.A.No.289 of 2003 seeking permission of the Debt Recovery Tribunal to prefer a counter claim claiming the amounts due to them. The 1st respondent— bank filed counter opposing the permission sought by the petitioners. The Debt Recovery Tribunal, Visakhapatnam by the impinged order dated 06-02-2004 dismissed the I.A. holding that the written statement of defendants 1 to 3, which was adopted by defendants 4 to 6, was filed on 18-06-1985. In the earlier statement it was pleaded that the plaintiff—bank committed a mess of things in regard to sale of tobacco of the defendants pledged to it and in their custody at Karamchedu godown and the bank dealt with it behind the back of the defendants and made mystery in regard to it which came to light later to the defendants who suffered loss. Later I.A.No.380 of 1993 in O.S.No.32 of 1991 was filed for amendment of the written statement. Para 11(b) was added pleading that the defendants entrusted tobacco worth Rs.62 lakhs to the plaintiff—bank, but the plaintiff—bank in collusion with others sold the same to private persons. The bank should have sold the tobacco in public auction. The bank even did not inform about the particulars of sale to whom it was sold and at what price. If the bank had sold tobacco in public auction, the same would have fetched more than Rs.62 lakhs and plaintiff—bank acted in most negligent and illegal manner in disposing the tobacco entrusted to it. If the bank gave credit to the said amount, the plaintiff—bank would be in a position of debtor and there will be nothing due to the bank. Except that the defendants have not set up any counter claim. Even if we take the order of amendment of written statement on 24-06-1993, the period of three years expired by 24-06-1996. Even we take the evidence of D.W.1, which was over on 24-11-1992, the three years period of limitation expired by 24-11-1995. Whereas the 1st petitioner in his affidavit stated that his evidence was closed on 23-01-1990, even if that date is taken into consideration, the period of limitation expired by23-01-1993. Since the period of limitation was over long back, petitioners cannot be permitted at this belated stage to file counter claim and accordingly dismissed the I.A. Questioning the correctness of the same the petitioners carried the matter in appeal before the Debt Recovery Appellate Tribunal, Chennai in M.A.No.60 of 2004. The Appellate Tribunal by its order dated 07-06-2005 dismissed the appeal holding even under CPC filing of counter claim is permitted under Order VIII Rule 6A CPC, wherein the right given to the defendant to claim counter claim in respect of cause of action occurring to the defendant against the plaintiff either before or after filing of the suit, but before the defendant has delivered his defence or the time limit for delivering his defence has expired. Since the cause of action in the instant case arose before filing of the suit in the year 1984, the defendants ought to have made use of the time limit given either under the CPC or under the Act. The petition filed by the defendants seeking permission of the Tribunal to grant leave to file the counter claim is completely barred by time and the order passed by the Debt Recovery Tribunal, Visakhapatnam do not suffer from any infirmity requiring its interference and accordingly dismissed the appeal. Questioning the correctness of the same the present writ petition has been filed. 4. We have heard the learned counsel for the petitioners and also learned counsel for the respondents. 5. It is not disputed that the amount claimed in the counter claim was prior to institution of suit; in the amended written statement it is specifically urged that the bank failed to sell the tobacco worth Rs.62 lakhs in public auction and acted in most negligent manner. Had the bank sold it in public auction, petitioners would have get more than Rs.62 lakhs and if the same is given credit to the suit claim, defendants are not liable to pay anything to the plaintiffs. 6. Order VIII Rule 6A CPC, which deals with counter claim by defendant, postulates 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: Provided that such counter-claim shall not exceed the pecuniary limits of the jurisdiction of the Court. Sub-Rule (4) of Rule 6A also adumbrates the counter-claim shall be treated as a plaint and governed by the rules applicable to the plaints. 7. If that be the case, the petitioners/defendants cannot lay a claim, claiming damages against the 1st respondent—bank, for the amounts by way of counter claim nearly after 17 years 8 months for the cause of action accrued to them. The Tribunal rightly dismissed the application filed by the defendants seeking permission to file counter claim as barred by limitation, which do not suffer from any manifest illegality warranting correction in exercise of Certiorari jurisdiction. 8. The writ petition fails and it is accordingly dismissed. Rule Nisi is discharge. No costs. _________________ A.GOPAL REDDY, J. __________________________ SAMUDRALA GOVINDARAJULU,J. 21-10-2009 Murthy