POPULAR BANK Vs. STATE OF KERALA

JUDGEMENT

(1.) THE common question in these proceedings is whether an affidavit filed by a debtor of an insolvent banking company under Rule 15 of the Travancore-Cochin banking Company Rules, 1955, in reply to a list filed by the liquidator under section 45-D (2) of the Banking Companies Act 1949 wherein he claims that money is due to him from the company and that an account should be taken, is a written statement pleading a set off within the meaning of item 1 of the schedule 1 to the Travan core-Cochin Court-fees Act II of 1125 and liable to court-fee as such, I do not think it is, even if we assume that such an affidavit is a written statement. For, under Section 529 of the Companies Act 1956, read with Section 47 of the Kerala Insolvency Act, in the easel of mutual dealings an account has to he taken and only the balance of the account can be claimed by the one party or the other, as the case may be. It is only this balance if it is in favour of the company, that the liquidator is entitled to claim, and an affidavit by a debtor claiming credit for money due to him and asking for an account to be taken is not a written statement claiming a set-off under Order 8, Rule 6 C. P. C. , (the law having already effected a set off) but is analogous to a written statement by a defendant in a suit on accounts claiming credit for sums not allowed by the plaintiff. Now when the affidavit is filed in answer to a claim made against the debtor, it can be regarded as a petition to the court. I therefore hold that such affidavits are not liable to court-fee.