IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 01.02.2011 CORAM THE HONOURABLE MR.JUSTICE S.PALANIVELU A.No.7010 of 2010 in C.S.No.158 of 2004 M/s.Marathon Electric Pvt., Ltd., At No.6 (Old No.37) Arcot Road Vadapalani, Chennai-600 026 (Amended as per Order dated 24.07.2009 in the Application No.1433 of 2009) ... Plaintiffs Vs 1.Devie and Co., Rep.by its proprietor Mr.S.Kumar 180, Dr.Nanjappa Road Coimbatore 2.S.Kumar 3.M/s.Rajeshwari Credits rep.by its Partner Mr.S.Thiagarajan Old No.155-A, New No.259 Jawahar Bazaar, Karur 4.M/s.Sree Lakshmi Devi Investments rep.by its Partner Mr.S.Thiagarajan Old No.155-A, New No.259 Jawahar Bazaar, Karur 5.M/s.Swarnalakshmi Credits rep.by its Partner Mr.Kandasamy Old No.155-A, New No.259 Jawahar Bazaar, Karur ... Defendants (Amended as per Application No.664 of 2005 Order dated 28.08.2007) Prayer: Application filed under Order XIV Rule 8 of O.S.Rules read with Order VIII Rule 9 of C.P.C. For Plaintiff : M/s.Surana & Surana For Defendants : Mrs.T.Kokilavani for D1 and D2 O R D E R The plaintiff has filed a reply statement along with the application to receive the same. The following pleas are found in the affidavit: a. The written statement contains the factual inaccuracies and these have been deliberately made for reasons best known to the defendants. In view of these discrepancies, it is necessary for the applicant/plaintiff to file a reply statement to the written statement of the 1st and 2nd defendants for a more and detailed understanding of the facts in disputes. b. Even if the reply statement is received, no loss or hardship would be caused to the defendants. 2.In the counter filed by the defendants 1 and 2 it is alleged that the plaintiff has taken out this application to get over the legal bar. On the eve of commencement of trial, an application for amendment may not be permissible. It is an attempt to improve upon the pleadings of the plaintiff to fill up the latches, after seeing the written statement. The plaintiff virtually attempting to substitute the plaint, which is impermissible. One of the three documents, produced along with the reply statement is purported acknowledgment of liability dated 06.08.2002. It has been gotten up after perusal of the written statement with the intention of neutralizing the averments of the written statement. It is a specific case of the plaintiff that a sum of Rs.1,25,19,056.14 as on 06.12.2002 and therefore the document dated 06.08.2002, wherein there is an alleged acknowledgment of the defendant's liability to the tune of Rs.1,19,88,000/-, is a begotten one. The perusal of the document would show that no credit has been given under the head "Provisions", to the tune of Rs.52.6 lakhs, which has been acknowledged by the plaintiff by its letter dated 12.02.2000. Having not given credit to the provision account, the plaintiff is not justified in raising the suit claim. 3.The pleadings in the reply statement that the defendants admitted to pay a sum of Rs.119.88 lakhs payable on 06.08.2002 is totally contradictory to the plaint averments and hence the entire suit claim would go, the sum of Rs.5.33 lakhs has not anywhere featured in the plaint and is coming up for the first time. The defendants can make alternate plea, but not the plaintiff. In the plaint, no where there is a whisper about an alleged reconciliation of accounts dated 06.08.2002, which has not been filed as a plaint document nor there is a pleading to this effect. Hence, it is clear that the plaintiff is attempting to fill up the lacuna on the basis of a fabricated document. In view of the above circumstances, this application may be dismissed. 4.The learned counsel appearing for the petitioner would submit that only in response to the allegations in the written statement the pleadings in the reply statement have been advanced, that there is no new plea forthcoming, apart from the plaint allegations and that there is no legal bar to put forth the things explaining the circumstances in written statement in favour of the plaintiff in the reply statement. 5.Repelling the contentions, the learned counsel appearing for the defendants would submit that going by the reply statement, it could be seen that the plaintiff has taken new plea with regard to the alleged liability letter dated 06.08.2002, that it was not divulged in the plaint and that the plaint pleadings did not reflect the particulars of amount as mentioned in the said document. 6.In order to make the circumstances as clear, it is profitable to extract the contents of the letter dated 06.08.2002, since it is being assailed by the defendants' side in tooth and nail, which as follows: "This is as per discussion with GE Motors Limited on 06-Aug-02. After reconciliation with GEMI, it has been found that Devie & Co. is liable to pay Rs.119.88 lacs to GEMI without any further reconciliation, Rs.119.88 lacs is undisputed and not subject to any further reconciliation. Rs.5.33 lacs is the amount pending for 600 motors sales return, if we are unable to give proofs of receipt at GEMI for these 600 motors, by 19-Aug-02, this shall be payable by us over and above the Rs.119.88 lacs." 7.The suit claim is for Rs.125,19,036.14. Though the above said letter was not whispered in the plaint, it pertains to the reconciliation of accounts between both the parties, in which Rs.119.88 lakhs was agreed to be paid. It is also stated that the above said amount is undisputed and not subject to any other conciliation. In sofor as Rs.5.33 lakhs is concerned, the amount was pending for sales return of 600 motors. A careful perusal of the pleadings in the plaint, written statement and the document dated 06.08.2002 would show that the plaintiff has not gone out of the plaint pleadings, but within the scope of the pleadings in the plaint. 8.No doubt, the said document is assailed by the defendants' side by describing it as a fabricated one. It is a matter for proof by oral and documentary evidence. 9.The learned counsel for the plaintiff placed reliance upon the decision of this Court in Indo International Ltd., rep.by its Managing Director and Anr. Vs. Continental Carriers Private Ltd., rep. by its Regional Manager, M.V.Bhat, reported in (2004) 1 MLJ 362, in which a reference to Mulla's C.P.C., 16th Edition at page 2001 has been made, wherein it is stated that in rejoinder, the plaintiff can be permitted to explain the additional facts which have been incorporated in the written statement. The plaintiff is precluded from raising any inconsistent pleas. But, there is no legal embargo for the plaintiff to explain certain facts in response to the allegations contained in the written statement, explaining his case. 10.In the case on hand, this Court is of the considered view that the plaintiff is not introducing any new plea so as to prejudice the rights of the defendants. As adverted to supra, the dispute as to the genuineness of the document is always open to be agitated. Since no inconsistent pleadings nor new cause of action are forthcoming, the reply statement could be entertained. 11.In view of the above findings, the objections in the counter are overruled and the petition to receive the reply statement has to be allowed. 12.In the result, the application is allowed permitting the plaintiff to file reply statement. No costs. krk