IBRAHIM Vs. BARKAT ALI

JUDGEMENT

(1.) THIS is an application in revision against the order of the City Civil Judge Indore dated 25 -6 -1954. The facts briefly are as follows: Barkat Ali filed a suit against Ibrahim for the recovery of Rs. 3,275. The Plaintiff alleges that on 1 -10 -1951 the Defendant borrowed Rs. 5,000 from the Plaintiff and paid Rs. 2,000 towards the principal. As Rs. 3,000 has not been paid, the suit is filed for the recovery of Rs. 3,000 principal and Rs. 275 - as interest.

(2.) THE Defendant denies having borrowed Rs. 5,000 in cash. He states that the Plaintiff and the Defendant were carrying on some business in partnership and Rs. 5,000 were found due to the Plaintiff by the Defendant. Consequently the Defendant put his signature on the balance of Rs. 5,000 in the Bahikhata of the Plaintiff. He further alleges that he paid Rs. 250 towards the interest in advance. He also states that at the time when the account was. settled Rs. 463 -13 -6 were due to him from the Plaintiff on account of some goods supplied to the Plaintiff and that Rs. 64 -8 -0 were due to him on account of two beds and cloth belonging to the partnership.

(3.) A payment refers to asatisfaction or extinguishment of a debt effected prior to the raising of the defence of payment. A counter -claim on the other hand is substantially a cross -action. Bearing these definitions in mind we have to see whether the plea of the Defendant is one of payment or counterclaim. Rs. 463 -13 -6 is a separate debt due to the Defendant by the Plaintiff. This amount the Defendant claims for the goods supplied to the Plaintiff. This has nothing to do with the first partnership. The Defendant now claims this amount to be set off against the money owed by him to the Plaintiff. This therefore cannot be treated as a plea of payment.