SANKARA PILLAI Vs. PARAMESWARAN PILLAI

JUDGEMENT

(1.) This revision is by the defendant, against an interlocutory order of the court below, holding that the set off claimed by him cannot be gone into.

(2.) The suit was for recovery of the principal of Rs. 300/- and interest at 12 per cent thereon due on a promissory note dated 18-7-1953 and executed by the defendant in favour of the plaintiff. The defendant in his written statement admitted the execution of the promissory note and his liability for the principal amount but set up contemporaneous agreement that the interest provision in the promissory note was not intended to be enforced. He also put forward a claim to set off an amount of Rs. 204-5-7 being the balance of advances alleged to have been made by him up to 11-9-1956 for conduct of certain suits of the plaintiff and at his request and produced three books of account maintained by him in that connection. He pleaded further that the plaintiff had agreed to have the principal amount under the promissory note adjusted as against the above said balance and was accordingly depositing into court the amount of Rs. 95 -10-5 Ps. ultimately due from him. The defendantss written statement was accompanied by the court fees on the amount of Rs. 204 and odd sought to be set off. On the motion of the plaintiff, the defendants right to prove the set off as so made was heard as a preliminary issue. The court below held in favour of the plaintiff that the defendant was not entitled to claim set off in the suit and as such the account books sought to be adduced in evidence were inadmissible. Hence this revision.

(3.) In arriving at its conclusion the court below found that, on the pleadings, it was not the defendants case that there was a settlement of accounts to which the plaintiff was a party and particular sum was then ascertained to be due to the defendant but, on the other hand, the amount actually due had still to be ascertained by the taking of accounts through court and so the set off fell outside the terms of O.8, R.6 of the Civil Procedure Code. The Munsiff did not consider the aspect of equitable set off. Learned counsel for the defendant however urges that the claim made by the defendant being for the specified sum of Rs. 204 and odd, there was no reason not to consider it as an ascertained sum within the meaning of O.8, R.6. Alternatively and assuming that the set off was for an unascertained amount, he contended that the court below should have dealt with the matter as an equitable set off.