BANK OF INDIA vs SRI. T ANAND on 18 July 2025

:FINAL ORDER:

1. This TA is filed by the applicant against the defendant seeking issuance of Recovery Certificate for Rs.12,92,58,400/- with further interest therein. It is the case of the applicant that the 1st defendant approached the applicant for Term Loan facility which was sanctioned initially a sum of Rs.65.00 Lakhs, thereafter Term loan of Rs.170.00 Lakhs, Cash Credit loan of Rs.14.50 Lakhs were sanctioned and disbursed on 14.12.2007. The said facilities was periodically revised and enhanced making the term loan totalling Rs.771.00 lakhs and cash credit totalling Rs.364.50 lakhs.

2. In view of the above sanctioned facilities, the defendants have executed loan documents apart from extending the security by hypothecation over the movables and also the mortgage over the schedule property. It is contended by the applicant that, despite availing the facilities obliging themselves to pay back the amount, the defendants failed in compliance of the terms of the agreement and also failed in making repayment which resulting Chronic defaults in the accounts. The applicant bank issued recall notice dated 28.07.2015, despite issuance of the same no repayment was forthcoming forcing the applicant to file this TA, seeking recovery for the due in aforementioned term loan and cash credit facilities.

3. The defendants had also filed their statement of objection, apart from the raising a counter claim which is to be dealt separately. The statement of objections the defendants contends that, it was only due to 3 TA/636/2017

some irregularities in sanctioning of the loan, all these issues arise. The defendants also contends that, the defendant though approached the banking ombudsman by filing a complaint which stood dismissed against which the Writ Petition is filed before the Hon’ble High Court of Karnataka as W.P.No.11326/2015.

4. It is also contended that the applicant is not entitled for any reliefs from this Tribunal as the property claimed to be mortgaged are agricultural land and hence cannot be construed as a valid mortgage. It is further contended that the 1st loan was sanctioned was a crop loan which was availed by the defendant at the instance of the Chief Manager of the applicant bank namely Sri. Dilip Laxman Shinde which was sanctioned on the assurance of the said Manager that the loan will be released on mortgaging the agricultural properties and with an intention that the land could be developed and get an agricultural income from the lands as per the projects proposed by the manager of the applicant bank. It is also admitted that subsequent to sanctioning of the said crop loan, with an intention to start poultry farm in his land, the defendant approached the applicant bank where in the Manager has lured to take defendant to lease out the land to the third party on monthly rent basis. Hence, according to the defendant at the instance of the bank one Mr. Ashok Kumar came forward to run the poultry farm on rental basis, and a tripartite agreement was entered into between the applicant bank, first defendant and said Mr. Ashok Kumar, before the release of the sanctioned amount in respect of establishment of poultry farm. It is the case of the applicant that the 4 TA/636/2017

applicant had suppressed the fact in the above application with malafide intention to overcome their lapses in sanctioning the loans.

5. It is further contended that, the project did not commence within the stipulated period, as at that time there was a drastic changes in the rates and hence the rent fixed by the said Ashok Kumar was not sufficient to meet the repayment requirement of the loan amount to the applicant bank. It is also stated that instead of allowing defendant to run poultry farm, the defendant was advised by the Bank Manager to set up Brooder Broiler. It is also alleged that, the bank had subsequently duped the defendant and made him to avail the facilities without proper guidance. It is also alleged that, since defendant want to run the business, he try to contact other banks and was prevented because of the status of the credit facility from the applicant bank was showing as ‘default’.

6. It is also the further case of the defendant that, the only credit facilities were enhanced at the advice and instance of the applicant bank and most of the sanctioned amount were adjusted towards the arrears of the loan dues, without the consent and knowledge of the first defendant. It is also admitted that the defendant was forced to mortgage the schedule property on 29.12.2012 as the bank had insisted for the same at the time of enhancement of the credit facilities. Hence, according to the defendant even though the credit facilities were sanctioned, the entire loan amounts were not released as major portion of the sanctioned amount adjusted to existing loans/liabilities of the defendants. According to defendant the 5 TA/636/2017

failure of the defendant to carry on the business is due to wrong advise and misrepresentation by the applicant Manager and other higher officials, the first defendant sustained heavy loss and another contention is that the signature of the defendants were obtained in blank papers and contents of the documents were filled up, subsequently to suit the applicant case. Counter Claim

7. Even though, no separate number is given, the same is dealt with separately as required under statute. The defendant who had raised the counter claim, had also contended that the application is to be dismissed in limine. The contention made in the written statement as to the leasing out of business of the poultry farm to Ashok Kumar on rental basis and the alleged advice of the bank officials as to the proposal for adjustment of the rental income to the loan account is also reiterated in the counter claim. Further the contention that because of the change of rate of interest, the rental income derived from the property was turnout to be not sufficient to pay of the dues is also raised in the counter claim, it also reiterated that when the 1st defendant volunteered to run the poultry farm by himself, the bank manager lured the 1st defendant to set up a Broader Broiler farm and an undertaking that the bank will sanction the further credit limits. According to the defendant the said misguidance of the bank Manager lead the defendant to borrow more money and there was no further disbursement from the applicant bank as undertaken by the Manager. The further contended that the status of the defendant with the 6 TA/636/2017

applicant as bank account is in default lead the defendant in capacitated from taking credit facilities from other bank is also stated in the counter claim.

8. The defendant further alleges that, out of the loan sanctioned amounts, the major amount was adjusted to the outstanding of the earlier loan account of the 1st defendant, which the defendant alleged is done without his prior consent. The defendant pointed out that they faced difficulty in carrying the business due to non-release of the fund at the right time and the bank had obtained signature from the defendant on blank documents. It is further contended that had applicant bank provided financial assistance at the right time, the 1st defendant would not only have made profit but would have repay the loan amount to the applicant bank on time. This further alleged that, as the result of the above act of attributed to the applicant bank, the defendant had suffered huge loss in the business altogether amounting to not less than 22.81 Crores, as the defendants turn over has come down from Rs.16,74,02,308/- to Rs.5,27,38,792/- due to above. The defendant also given a quantification of the claimed loss occurred to him, which is as follows:

a) Rs.4,43,00,000/- invested in poultry farming for one year.

b) Rs.1,09,00,000/- estimated profit to be derived from the sale of eggs for one year.

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c) Rs.22,76,00,000/- suffered due to wrongful acts of the applicant bank from 2012 to 2019 (refer to project report details annex 8)

d) Rs.5,00,000/- suffered towards loss of time, reputation and litigation expenditure. The total loss sustained by the 1st defendant is Rs.22.81 Crores.

9. Hence, counter claim is filed seeking the following reliefs: a) Directing the applicant bank to pay a sum of Rs.22.81/- by way of damages towards the loss suffered by the 1st defendant on account of the wrongful acts of the applicant bank; b) Directing the applicant bank to perform his part of the contract by releasing the entire sanctioned amount to the 1st defendant to carry on his poultry farming, whereby he can make good his losses and repay the applicant bank; and c) Direct the applicant bank to pay the cost throughout in the ends of justice. d) Grant any other relief which this Hon’ble Tribunal deems fit in the facts and circumstances of the case and in the interest of justice and equity.

10. The applicant bank has filed their written statement to the counter claim contending as follows:

11. The counter claim as put forth by the defendant is not maintainable as there is no cause of the action for the application. An objections is also raised to the Act that, the defendant had already filed their written statement, which itself will preclude the defendant from placing raising a counter claim subsequently which according to the

8 TA/636/2017

applicant can only be the result of an afterthought. It is reiterated that the OA claim is made in accordance with the case as put forth in the OA and supported by documentary evidence.

12. The contention of the defendant that the sanction amount was not released on time and the defendant could not carry out the various activities related to agricultural/poultry business is denied by the applicant bank. It is also pointed out that, now borrower has no right to challenge the terms of the sanction and it is the discretion of the bank to sanction and disburse the amount as per the terms. The so called right of the bank to recover the amount due is also reiterated in the written statement. In respect of the contention as to the adjustment of the portion of the amount to the existing dues, it is stated that the same is permissible and there is no illegality in such adjustment as the bank is legally entitled for the same.

13. It is also pointed out the writ petition filed before the Hon’ble High Court of Karnataka stands disposed of with an observation that the defendants are permitted to urge all these contention before the DRT, which according the applicant bank did not create a cause of action for maintaining a counter claim of this nature. It is also reiterated that the applicant bank had extended all the possible assistance and support to the defendant and only because of the failure of the defendant to honor the commitments, the scenario where by the bank was force to file the TA arise.

9 TA/636/2017

14. Since the defendant have raised a counter claim, this Tribunal is of the view that, the Original Application and the Counter Claim has to be dealt with separately. TA/636/2017:

15. The applicant has filed this Transfer Application seeking recovery of the amount claimed therein, which the applicant contends as due in the credit facilities availed by the defendants. The applicant had let in evidence as AW-1, who had deposed in terms of the TA claim and got marked Exhibit A3 to A88.

16. The applicant had produced the loan application, sanction letter and security documents executed by the defendants in pertaining to the original sanction of Rs.65.00 Lakhs and sanction of Rs.771.00 lakhs towards Term loan and Rs.364.50 lakhs towards cash credit facility. Even though the defendant had filed the written statement separately, there is no serious dispute as to the availment of the credit facilities or sanctioning of the amount is made. The main case of the defendant is that, the applicant’s officials have lured the defendant and made him to lease out the poultry farm to the third person and with an advice that the rental receives from the same can be utililsed for repayment of the credit facility. It is also stated that because of the change of rate of interest, the repayment could not be made out from the rental income, which resulted in default.

10 TA/636/2017

17. The defendants had filed a consolidated proof affidavit reiterating the contention as made in the written statement as well as the counter claim and produced Exhibit D3 to D80.

18. The following issues arise for consideration in the TA, in the light of pleadings and also the rebuttal as made by the defendant in the written statement: i) Whether the applicant had succeeded in proving the OA claim as against the defendants? ii) What order are to be passed?

Both these issues are gone into and decided together.

19. Even though, the applicant had produced the loan documents duly executed by the defendants, the main contention of the defendant in respect of the same is that, the signatures were obtained in blank paper and the bank had subsequently filled the blank papers to suit their case. In respect of the above, it is to be noted that, the plea or the said nature cannot be allowed to be accepted as law in this regard is decided by, the judgment of the Hon’ble High Court of Andhra Pradesh in the case of Corporation Bank V/s Sushil Enterprises (2004) 1 ISJ Banking 160 is relevant, wherein it is held that: “Nobody is expected to sign the documents without reading or when it is blank and if he does so he does at his own risk and the very fact that the plaintiff bank has disbursed the loan amount and Defendant had availed it also shows that the documents were valid and duly executed”

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20. The next contention is taken by the defendant is that, the defendant was in fact, advised by the bank official to lease out the poultry farm to one Ashok Kumar with an advised that the rental receipts will be sufficient to pay off the remittances which subsequently turned off to be not possible, which according to the defendant is due to change of interest rate. This surprising that the defendant is taking contention that he is acting according to the advice of the bank officials and had rent out the premises to third party. The said contention even assume to be correct, the same had nothing to do with the entitlement of the applicant bank to recover the due amount disbursed by them. Even, if the defendants case that he had acted in accordance with advice of the particular Manager only he had to be found fault with. Regarding the inability to pay off the monthly remittances out of rental income itself is an admission as to the defaults occurred in the accounts, which by no means attributable to the conduct of the applicant bank. If at all the defendant had acted in accordance with the individual who is working in a bank, the same cannot be construed as an action from the institution.

21. The next contention of the defendant that the amounts sanctioned is not disbursed to the account were adjusted to the loan accounts of the applicant is also not sufficient to dis-allow the claim of the applicant bank, as it is permissible that the amount disbursed in subsequent loans can be adjusted to the pending dues of the borrower if any with the same bank. Since the defendants are not having any case that, any amount is scuttled outside, this Tribunal is of the view that, this defense set up by 12 TA/636/2017

the defendants is liable to be rejected. IT is pertinent to note that the defendant admitting that the portion of the amount sanctioned is adjusted to his own loan, which by no way dis-entitle the applicant’s to recover the amount.

22. The next contention taken by the defendant is that the claim of the applicant bank is barred by limitation. In this regard, it is to be noted that the defendant had executed the balance and security confirmation on 14.12.2007, 27.12.2007, 07.10.2009, 20.04.2011, 31.12.2012 and lastly on 30.07.2013. The applicant had let in evidence and got marked this balance security confirmation as Ex.A79 to A84. The facilities are secured by mortgage. As per Article 62 limitation, the limitation period for recovering the amount secured by the mortgage is 12 years and no by stretch of imagination the claim of the applicant can be construed as beyond limitation. The credit facilities availed by the defendants are supported by documentary evidences by which the applicant adduced as Ex.A3 to A78. There is no serious dispute as to the execution of loan documents other than taking a frivolous contention that, the defendant was made to sign in the blank papers, which was dealt hereinabove. In view of the undisputed loan documents evidencing, execution of the loan documents by the defendants supported by the proof affidavit of the applicant which reiterated the contention of the TA, this Tribunal is of the view that the applicant has succeeded in proving the TA claim. Hence, the applicant bank is entitled to get the TA allowed in their favour.

13 TA/636/2017

23. Taking into consideration that the matter is pending for 15 years and also that the applicant bank has arrived, calculated interest at the aggrieved rate and arrived at the TA claim by calculating interest at the rate prevailing at that period, this Tribunal is of the view that, the pendelite and future interest can be awarded at a reduced rate of 12.00% (simple)

24. In the result the TA.No.636/2017 stands allowed,

i) The applicant is allowed to recovery an aggregate sum of Rs.12,92,58,400/- (Rupees Twelve Crore Ninety Two Lakh Fifty Eight Thousand Four Hundred only) with further interest of 12.00% p.a.(simple) from the date of filing TA till the realization from defendants, after giving credit to all the amount recovered and received during the pendency of the TA and allowed the same to be recovered by proceeding against schedule property. The schedule property to the OA be the schedule property to the Recovery Certificate.

ii) If the sale proceeds are not found sufficient to cover the amount due and payable to the applicant bank, the defendants jointly, severally, personally and other their assets are liable for all such amounts due under the loan account.

iii) The applicant bank is allowed cost of the proceeding which applicant to file cost memo within 7 days from the date of receipt of the order.

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iv) The Recovery Certificate to be drawn in terms of this order and transferred to Recovery for execution.

25. Communicate a copy of the order to the parties concerned in terms of Section 19(21)(i) of the RDB Act, read with Rule 16 of DRT (Procedure) Rules, 1993. Counter Claim:

26. The counter claim is filed on 19.06.2019, praying for reliefs directing the applicant to pay a sum of Rs.22.81 Crores by way of damages and also applicant bank to perform his part of contract by releasing the entire sanction amount to 1st defendant. As against the counter claim the applicant had filed separate written statement (re-joinder) against the counter claim denying the contentions of the counter claimant and reiterating the statement of facts as stated in the TA.

27. The defendant had let in his evidence in counter claim through a Power of Attorney and produced the following documents: Annexures Particulars D1 Affidavit of Evidence D2 List of Documents D3 Copy of the letter dated 19.10.2011 issued by Bank of India. D4 Copy of the CIBIL Consumer Credit Information Report issued by Credit Information Bureau (India) Ltd dated 17.10.2011 D5 Original of the Tax Invoice issued by Kavi Agencies dated 05.04.2013 D6 Original of the Tax Invoice issued by Kavi Agencies dated 22.04.2013

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D7 Original of the Tax Invoice issued by Kavi Agencies dated 10.05.2013 D8 Original of the Tax Invoice issued by Kavi Agencies dated 14.05.2013 D9 Original of the Tax Invoice issued by Kavi Agencies dated 31.05.2013 D10 Original of the Tax Invoice issued by Kavi Agencies dated 17.06.2013 D11 Copy of the Tax Invoice issued by Kavi Agencies dated 08.07.2013 D12 Original of the Tax Invoice issued by Kavi Agencies dated 27.07.2013 D13 Original of the Tax Invoice issued by Kavi Agencies dated 13.08.2013 D14 Original of Cash Invoice issued by Kavi Agencies dated 19.08.2013 D15 Original of Cash Invoice issued by Kavi Agencies dated 30.08.2013 D16 Original of the Tax Invoice issued by Kavi Agencies dated 21.09.2013 D17 Original of the Tax Invoice issued by Kavi Agencies dated 16.12.2013 D18 Copy of the Tax Invoice issued by Kavi Agencies dated 13.11.2013 D19 Original of the Receipt dated 20.09.2013 issued by Radhika Trading Co. to Anand Poultry Farm. D20 Original of the Credit Bill No.396, dated 19.09.2013 issued by Radhika Trading Co. to Anand Poultry Farm and the Carbon Copy of the same D21

21. Original of Weighment Slip Sl.No.922, dated 20.04.2013 issued by Maltose Agri Products Pvt Ltd. to Kumar Bangalore. D22

by R.G. Rudresh Traders to Anand Poultry Farm and Carbon Copy of the same D23 Original of the Delivery Challan, dated 23.02.2012 issued by Hatcheries Pvt Ltd. To Mr.Anand Sandur D24 Original of the Tax Invoice, No. C.R 4787, dated 06.02.2013, issued by Kavi Agencies to Anand Poultry Farm. D25 Original of the Delivery Challan, No.4259, dated 13.04.2012 issued by MAA Integrators to Bayregowd. D26 Original of the Delivery Challan, No.144, dated 31.08.2012 issued by INDBRO Research AND BREEDING FARMS to Anand Maltose.

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D27 Original of the Delivery Challan, No.143, dated 31.08.2012 issued by INDBRO Research AND BREEDING FARMS to Anand Maltose. D28 Original of the Invoice No. 316 dated 08.03.2012 issued by Hatcheries Pvt Ltd. To Anand Sandur D29 Original of the Receipt No. 303, dated 07.03.2012 issued by Sandur Hatcheries Pvt Ltd. To Maltose Agro Products. D30 Copy of the Invoice No. 969, dated 12.02.2013 issued INDUSTRIES to Anand by TEXMO D31 Original of the Tax Invoice, No. C.R 4901, dated 13.02.013, issued by Kavi Agencies to Anand Poultry Farm. D32 Copy of the Tax Invoice, No. C.R 5225, dated 06.03.13, issued by Kavi Agencies to Anand Poultry Farm. D33 Original of the Weighment Slip, Sl.No.822, dated 10.03.2013 issued by Maltose Agri Products Pvt Ltd. to Kumar Bangalore. D34

copy of the same D35 Original of the Certificate of Ownership dated 09.03.2013, C.No.N.L4498-67-68 D36 Original of the Receipt, Sl. No.829, dated 13.03.2013 issued by Maltose Agri Products Pvt Ltd. to Kumar Bangalore. D37 Original of the Invoice No.000014 dated 12.03.2013 issued by R.G. Rudresh Traders to Anand Poultry Farm and Carbon Copy of the same D38 Original of the Tax Invoice, No. 5577, dated 23.03.13, issued by Kavi Agencies to Anand Poultry Farm. D39 Original of the Tax Invoice, No.4194, dated 07.01.2013, issued by Kavi Agencies to Anand Poultry Farm. D40 Original of the Tax Invoice, No. 4473, dated 22.01.2013, issued by Kavi Agencies to Anand Poultry Farm. D41 Original of the Tax Invoice, No. 1922, dated 14.08.2012, issued by Kavi Agencies to Anand Poultry Farm. D42 Copy of the Weighment Slip Sl. No.374, dated 17.10.2012

Bangalore. D43 Copy of the receipt of the weighbridge dated 16.10.2012 issued ACCURATE WEIGHBRIDGE by D44

44. Original of the Freight Letter, No.69, dated 16.10.2012

D45 Original of Permit for Transportation of Notified Agricultural Produce, dated 16.10.2012, bear bearing No. RNBNMN0389.

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D46

Farms and Carbon Copies of the same D47 Original of the Receipt, Sl.No.434, dated 09.11.2012 issued by Maltose Agri Products Pvt Ltd. to Kumar Bangalore. D48 Original of the Freight Letter, No.23, dated 08.11.2012

D49

D50

Farms and carbon copies of the same D51 Original of the Fright Letter, No.26, dated 10.11.2012

D52

D53

Farms and carbon copies of the same. D54 Original of the Tax Invoice, No. CR3893, dated 22.12.2012, issued by Kavi Agencies to Anand Poultry Farm. D55 Original of the Receipt, Sl. No.846, dated 18.03.2013 issued by Maltose Agri Products Pvt Ltd. to Kumar Bangalore. D56 Original of the receipt of the weighbridge dated 17.03.2013 issued by SRI BASAVESWARA WEIGHBRIDGE. D57 Original of CERTIFICATE OF OWNERSHIP no. C.NO. 4498/67-68 dated 17.03.2013 D58

copy of the same D59 Original of the Receipt, Sl. No. 702, dated 04.02.2013 issued by Maltose Agri Products Pvt Ltd. to Kumar Bangalore. D60 Original of Cash/Credit bill, No.06 dated 03.02.2013 issued by BΕΝΑΚΑ TRADERS to Anand Poultry farm D61

HSNMN0551. D62 Original of the Receipt, Sl. No.89, dated 05.04.2013 issued by Maltose Agri Products Pvt Ltd. to Kumar Bangalore. D63 Original CERTIFICATE OF OWNERSHIP no. C.NO. 4498/67- 68 dated 04.04.2013

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D64

copy of the same. D65 Original of tax invoice No. 223 dated 13.02.2010 issued by Mohith Sales Corporation to Mr. Anand D66 Original of tax invoice No. 233 dated 27.02.2010 issued by Mohith Sales Corporation to Mr. Anand D67 Original of tax invoice No. DOMS/137/10-11 dated 20.09.2010 issued by BUILDMENT FIBRES PRIVATE LIMITED to Mr. Anand D68 Invoice tax No. Original of DOMS/144/10-11 dated 24.09.2010 issued by BUILDMENT FIBRES PRIVATE LIMITED to Mr. Anand and carbon copy of the same. D69 Original of invoice tax No. DOMS/150/10-11 dated 29.09.2010 issued by BUILDMENT FIBRES PRIVATE LIMITED to Mr. Anand and carbon copy of the same. D70 Original of invoice No. 469 dated 07.03.2009 issued by Mohith Sales Corporation to Mr. Anand D71 Original of Invoice No. 471 dated 09.03.2009 issued by Mohith Sales Corporation to Mr. Anand D72 Original of Invoice No. 362 dated 27.07.2009 issued by Mohith Sales Corporation to Mr. Anand D73 Original of Tax invoice No. 035 dated 04.11.2009 issued by Mohith Sales Corporation to Mr. Anand D74 Original of Tax invoice No. 034 dated 04.11.2009 issued by Mohith Sales Corporation to Mr. Anand D75 Original of Tax invoice No. 202 dated 24.12.2009 issued by Mohith Sales. Corporation to Mr. Anand D76 Copies of the statements of Accounts of Bank of India issued to Mr. Anand in respect of the account Nos. 840077210000016; 840076210000011, 840065610000005; 842776200000042, 840032110000009; 842732110000001, 840077210000002; 842777210000001, 840020110000733. D77 Copy of the letter dated 14.09.2012 from Mr. Anand addressed to the Assistant General Manager, Bank of India in respect of additional loan. D78 Copy dated of the Complaint 04.09.2014 before the Ombudsman filed by Mr. Anand. D79 Copy of the Order dated 30.01.2019 passed by the Hon'ble High Court of Karnataka in W.P. No. 42274/2015 c/w 11326/2015. D80 Copy of the summary report along with Annexures in respect of loss sustained in the business of Mr. Anand.

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28. Now, the following issues arise for consideration in the counter claim:

i) Whether the Counter Claim which is filed separately, after filing the written statement can be accepted?

ii) Whether the Counter Claim is barred by limitation?

iii) Whether the defendant is entitled to get the counter claim on the basis of the available evidence. All these issues are gone into and decided together.

29. In respect to i) Whether the Counter Claim which is filed separately, after filing the written statement can be accepted? It is to be noted that, The Hon'ble Supreme Court in ”Ashok Kumar Kalra v. Wing Cdr. Surendra Agnihotri and Others" 2020(2) SCC 394 considered this issue and held: " 28. From the foregoing discussion, it is clear that a counter

- claim can be filed if two conditions are met: first, its cause of action complies with Order VIII R.6A(1); and second, it is filed within the period specified under the Limitation Act. Clearly, by itself, R.6A does not specifically require that a counter - claim has to be filed along with the written statement. In the absence of a particular mandate under this Rule, it is necessary to look to other provisions of the CPC to determine whether a counter - claim can be filed after a written statement. 29. It would be appropriate to begin with a reference to Order VIII R.9, which states thus: "9. Subsequent pleadings.-- No pleading subsequent to the written statement of a defendant other than by way of defence to set off or counter - claim shall be presented except by the leave of the Court and upon such terms as the Court thinks fit; but the Court may at any time require a written statement or additional written statement from any of the parties and fix a time of not more than thirty days for presenting the same." (emphasis supplied) According to this Rule, after the filing of the written statement, it is open to plead a defence to a set - off or counter - claim without the

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leave of the Court. However, any other pleading sought to be filed after the written statement requires the leave of the Court. The Rule also vests the Court with a discretion to allow filing of a written statement or additional written statement within a period not exceeding thirty days. A plain reading of Order VIII R.9 makes it clear that the Court has the discretion to allow any subsequent pleading upon such terms as it thinks fit. It is important to appreciate here that such subsequent pleading or additional written statement may include a counter - claim. This is because R.9 does not create a bar on the nature of claims that can be raised as subsequent pleadings. As long as the Court considers that it would be proper to allow a counter - claim by way of a subsequent pleading, it is possible to file a counter - claim after filing the written statement. In addition to this, it is also possible to introduce a belated counter - claim by way of an amendment to the original written statement under Order VI R.17, CPC. However, as is the case with Order VIII R.9, the filing of such a counter - claim through an amended written statement is subject to the leave of the Court, and not accorded to the defendant as a matter of right. In this regard, it would be relevant to note the observations of this Court in Ramesh Chand Ardawatiya v. Anil Panjwani, 2003 KHC 1536 : 2003 (7) SCC 350 : AIR 2003 SC 2508 : JT 2003 (4) SC 450: "28. Looking to the scheme of O.8 as amended by Act 104 of 1976, we are of the opinion, that there are three modes of pleading or setting up a counter - claim in a civil suit. Firstly, the written statement filed under R.1 may itself contain a counter - claim which in the light of R.1 read with R.6 - A would be a counter - claim against the claim of the plaintiff preferred in exercise of legal right conferred by R.6 - A. Secondly, a counter - claim may be preferred by way of amendment incorporated subject to the leave of the Court in a written statement already filed. Thirdly, a counter - claim may be filed by way of a subsequent pleading under R.9. In the latter two cases the counter - claim though referable to R.6

- A cannot be brought on record as of right but shall be governed by the discretion vesting in the court, either under O.6 R.17 CPC if sought to be introduced by way of amendment, or, subject to exercise of discretion conferred on the Court under O.8 R.9 CPC if sought to be placed on record by way of subsequent pleading." (emphasis supplied) I fully agree with this proposition, and affirm on the basis of the foregoing discussion that the Court has the discretion to allow a counter - claim to be filed after the written statement 21 TA/636/2017

in exercise of its power under Order VIII R.9 and Order VI R.17 of the CPC."

Hence there is no absolute bar in filing counter claim after filing the written statement.

29. The counter claim is raised by the defendant contending that, they reiterating the contention as taken in the written statement in TA. The counter claimant is admitting the availment of the credit facilities, but contends that he had been advised by the officials of the bank to rent out his poultry farm to a third party on monthly rent and based on that advice one Ashok Kumar was allowed to run the poultry farm on rental basis. The said action is done as the rental income can be adjusted to the loan repayment. It is also the case of the counter claimant that, because of the change of interest rate the repayment as contemplated earlier could not be fulfilled and that constrain the 1st defendant to raise amount from 3rd parties to remit into the loan account. This also specifically contended that, the Bank Manager of the applicant bank who suggested the poultry farm to be rented out and also mislead the 1st defendant to cover up his own lapse filed the TA.

30. The next contention taken by the counter claimant in the counter claim is that as the status of the loan account of the counter claimant with the bank was mentioned as “Suit Filed”, the counter claimant was prevented from taking further facility from other banks. Even though, the said contention is taken no effort was made to point out any illegibility in the conduct of the applicant bank in mentioning his account was ‘Suit 22 TA/636/2017

filed”. Even otherwise, this Tribunal cannot find any fault with the conduct of the bank as admittedly, as during that period the account was in default.

31. The further contention of the counter claimant that the bank sanctioned the various credit facilities and adjusted a portion of the same to the outstanding due in the earlier loan accounts is also untenable in view of the fact that the applicant had already proved the execution of the loan documents by the counter claimant. Even otherwise, in the counter claimants failed to put forward or point out any illegality if any in the conduct of the bank in adjusting the said amounts.

32. The next contention of the counter claimant is that had applicant bank provided financial assistance at the right time, the 1st defendant would not only have made profits would have repaid the loan amount to the applicant bank on time. This contention is also not supported by any evidence or substantial pleadings which leads to the above conclusion. The defendant claimed to have suffered a business loss altogether amounting to Rs.22.81 Crores and it is surprising that even in the counter claimant failed to put forward any pleading in support of his claim as how this Rs.22.81 Crores has been arrived at. The counter claimant had failed to point out that how the defendant can legally maintain any claim against bank. Apart from making some wild allegation as to the adjustment of sanctioned amount to the existing loans and ill-advice given by some bank official; the counter claimant had miserably failed to point out any cause of action on which the counter claim can be maintained.

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Hence, the counter claim which is raised without any cause of action and only on the basis of bald allegation that, the failure of the applicant bank to provide financial assistance at right time and also that the counter claimant was made to dance to their tune by and not providing any financial help to them is not sufficient to establish any claim against the bank

33. The applicant try to maintain this counter claim by payment of court fee of Rs.1.5 lakh based on a cause of action which according to the counter claimant, arose when the Hon’ble High Court of Karnataka disposed of the writ petition permitting the counter claimant to raise all contention available to him by this Tribunal. In this regard, it is pertinent to note that the Hon’ble High Court has not specifically permitted the counter claimant to raise the counter claim after the disposal of the writ petition and had only permitted to bring all the contention before this Tribunal. It is to be noted that the credit facilities were availed by execution of loan documents from a period 2005 to 2013. The base of the counter claim is made by the applicant is silent as to when the so claimed cause of action for the counter claim has arisen. In the absence of any specific cause of action as mentioned the same has to be construed on the date of sanction of last facility i.e. on 30.07.2013. Taking into consideration of the fact that, even though the claim of the applicant bank is protected under Article 62, the limitation for raising a counter claim on the basis of the loan documents Article 62 does not apply and period of limitation is Article 27 applies and the period of limitation is only 3 years. Hence, this counter claim is liable to be rejected on the ground of limitation.

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34. Even though, the counter claim is proposed to be raised by remitting the fee of Rs.1.50,000/- no specific plea as to how the counter claim is entitled to claim the amount is not mentioned. The counter claim is devoid of proper pleadings and the documents. None of the documents produced by the counter claimant coupled as the pleadings along with the evidence is not sufficient to establish any clause against the applicant. The documents produced by the counter claimant pertaining to the business of the counter claimant and had nothing to do with the pleadings as taken in the counter claim. Even though, the documents pertaining to the loan accounts; the statement of the accounts and letters issued by the borrower which is produced at D7 and D8 cannot be taken as evidence for two reasons: 1) the defendant had not made any endeavor to get the documents marked; 2) even if, the said documents are marked the same can only be a self-procured document for making out a defense. Even otherwise, the said document even if admitted in totality will not give rise to cause of action or a claim. The counter claimant miserably failed to put forward any pleading or any evidence in support of counter claim and as the counter claim is mis-conceived and is liable to be dismissed.

35. Accordingly, the counter claim is dismissed. No Order as to costs. [Dictated to the Stenographer (PR), transcribed by her, corrected and signed and pronounced by me in the Open Court, this the 18th Day of July 2025].

Sd/- (T. RAJESH) PRESIDING OFFICER

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ANNEXURES WITNESSES EXAMINED FOR THE APPLICANT BANK: AW-1: Sri. Jagdish Patnaik, Chief Manager of the applicant bank.

Exhibits on the part of the Applicant: Annexure Particulars A1 Affidavit Evidence A2 List of documents A3 Loan application A4 Agreement for Term loan and Hypothecation for Rs.65.00lakhs A5 L516; Agreement by borrowers to secured credit limit A6 L-515 Declaration A7 Guarantee deed A8 Declaration and Undertaking A9 Loan application A10 Sanction letter A11 Demand promissory note A12 Authorization letter A13 Agreement by borrowers to secured credit limit A14 Hypothecation agreement A15 L-515 Declaration A16 Guarantee Agreement A17 Loan application A18 Sanction letter A19 Demand promissory note A20 Authorization letter A21 Agreement by borrowers to secure credit limit A22 Hypothecation and loan agreement A23 L-515 declaration A24 Guarantee deed A25 Sanctioned letter A26 Demand promissory note A27 Authorization letter A28 Agreement by borrowers to secure credit limit A29 Hypothecation and loan agreement

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A30 L-515 Declaration A31 Guarantee deed A32 Application for enhancement of loan facility A33 Sanctioned letter A34 Demand promissory note A35

A36 Agreement by borrowers to secure credit limit A37 Hypothecation and loan agreement A38 L-515 Declaration A39 Hypothecation cum loan agreement A40 Guarantee deed A41 Application for credit facility A42 Sanctioned letter A43 Demand promissory note A44 Authorisation letter A45 Agreement by borrowers to secure credit limit A46 Hypothecation cum loan agreement A47 L-515 Declaration A48 Agreement of term loan and hypothecation A49 Guarantee Deed A50 Loan application A51 Sanctioned letter A52 Demand promissory note A53 Authorization letter A54 Agreement by borrowers to secured credit limit A55 Agreement for term loan cum Hypothecation A56 L-515 Declaration A57 Guarantee Deed A58 Loan application A59 Sanctioned letter A60 Demand promissory note A61 Authorization letter A62 Agreement by borrowers to secured credit limit A63 Agreement for term loan cum hypothecation A64 L-515 Declaration A65

A66 Guarantee agreement A67 Loan application for enhancement A68 Sanctioned letter A69 Demand promissory note

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A70 Authorization letter A71 Agreement by borrowers to secured credit limit A72 L-515 Declaration A73 Guarantee Agreement A74 Demand promissory note A75 Authorisation letter A76 Agreement by borrowers to secure credit limit A77 L-515 Declaration A78 Guarantee agreement A79 Acknowledgment of debts and securities/Balance Confirmation dated 14.12.2007 A80 Acknowledgment of debts and securities/Balance Confirmation dated 27.12.2007 A81 Acknowledgment of debts and securities/Balance Confirmation dated 07.10.2009 A82 Acknowledgment of debts and securities/Balance Confirmation dated 20.04.2011 A83 Acknowledgment of debts and securities/Balance Confirmation dated 31.12.2012 A84 Acknowledgment of debts and securities/Balance Confirmation dated 30.07.2013 A85 Mortgage and Extension of Mortgage Deeds A86 Legal notice copy A87 Postal receipt/acknowledgements A88 Statement of account

Sd/- (T. RAJESH) PRESIDING OFFICER