CHERIA ELIAS Vs. SURENDRA CHIT FUND

JUDGEMENT

(1.) APPELLANTS are the defendants in O. S. 486 of 1978 of the First Additional Sub Court, Ernakulam. Plaintiff (respondent herein) filed the suit to recover money on the strength of a chitty agreement. 1st defendant contended inter-alia that Rs. 11,000/- is due to him as the plaintiff had obtained loans from him on two occasions as evidenced by Exts. B1 and B2 and so the plaintiff is not entitled to the suit claim. Learned Sub Judge decreed the suit over-ruling the above contention.

(2.) THE learned Sub Judge held that the 1st defendant has not paid court fees on the plea of set off and so he cannot legally sustain the claim. Contention of the 1st defendant is that amount evidenced by Exts. B1 and b2 will have to be adjusted towards the plaint claim and therefore no court fee need be paid by him. In a case where a plea could be taken as a plea of adjustment, no court fee is payable. But in a case of set off or counter claim court fee will have to be paid. S. 8 of the Court Fees and Suits Valuation Act provides that a written statement pleading a set off or counter claim shall be chargeable with fee in the same manner as in a plaint.

(3.) ANOTHER question to be considered is whether it would be open to a defendant to claim set off or counter claim if such claim is barred by limitation at the time when the plaintiff has filed the suit against him. Ext. Bl is dated 26-6-1975 and Ext. B2 is dated 21-8-1975. The suit was filed by the plaintiff on 13-12-978. By the time the suit was filed the period of limitation has run out for any claim to be made on the strength of Exts. Bl and B2. In a suit where the plaintiff claims certain amount from the defendant, the latter cannot successfully advance a plea of set off or counter claim if that plea is barred by limitation. Even if it is assumed that the plaintiff owed Rs. 11,000/- as evidenced by Exts. B1 and B2, the 1st defendant cannot legally enforce his claim against the plaintiff as his claim is barred by limitation when the plaintiff filed suit against him.