NARSING RAO RAMKRISHNAYYA Vs. VEERAYYA RAJANNA

JUDGEMENT

(1.) THIS is a petition in revision on behalf of Defendant 1 against the order of the Court below dated 1 -2 -1952 deciding issue 5 against him. It is argued on behalf of the Defendant -Petitioner that the Court below has erred in deciding issue 5 against him. His contention is that set off claimed by him arises out of the same transaction (and?) as such the Defendant is entitled to both legal and an equitable set off. Reliance is placed on the cases of Pragilal v. Maxwell, 7 All 284 (A); Suryanarayan v. Ratanlal, AIR 1952 Hyd 34 (B); Lakshmanan Chettiar v, Ramanathan Chettiar : AIR 1935 Mad 115(1)(C).

(2.) ON behalf of the other side it is urged that the Defendant is not entitled to either legal or equitable set off. With regard to the legal set off it is contended that as the sum claimed by the Defendant is not an ascertained sum, he cannot be entitled to a claim for a legal set off. With regard to the question of equitable set off, it is contended that as the claim of the Defendant is for damages and the claim of the plaintiff is based on a contract, it cannot be said that it arises out of same transaction. Reliance is placed on the cases of Muslim Bank v. Hasan Shiraza, AIR 1951 Hyd 57 (D); Raghunath Das v. Ashraf Hussain, 2 All 252 (E); Victoria Mills Co. Ltd. v. Brij Mohanlal, AIR 1917 All 176 (1) (F); Mt. Diltor Koer v. Harkhoo Singh, AIR 1910 Pat 167 (G); and Har Prasad v. Ram Sarup Radha Kishen : AIR 1924 All 872 (H).

(3.) BECAUSE of the (un?) authorised sale Defendant claims Rs. 2000/ - as damages and this amount he wanted to be set off against the suit claim. Thus, it is clear from this that the Defendant claims the amount by way of damages.