T S SITARAMA AYYAR Vs. GRAMANUJA MUDALIAR

JUDGEMENT

(1.) The question involved in this petition is whether the defendant-petitioner has to pay the court-fee under Art. 1, Sch. 1, Court-fees Act, on the amount of Rs. 2,000, which he has claimed as against the plaintiff in his written statement by way of damages in a suit brought by the plaintiff on a promissory note. The learned District Munsif has disposed of this question, which is not after all free from difficulty, in a single sentence, namely: I think the defendant must pay the court-fee due on the set off claimed by him as damages against the plaintiff.

(2.) It is amazing that he has not chosen to give his reasons for the conclusion arrived at by him. It is therefore difficult to know what reasons were operating on the mind of the learned District Munsif when he passed this order that the court- fee must be paid. This sort of deciding a contested petition should, to say the least, be deprecated. However I had the advantage of the arguments of the learned Counsel on both sides on this question. Order 8, Rule 6, Civil P.C., deals with set-off claimed by a defendant in his written statement. The amount so claimed should be an ascertained sum of money legally recoverable by him from the plaintiff. The question now is whether the claim of the present defendant made in his written statement is for any ascertained sum of money legally recoverable by him from the plaintiff within the meaning of Rule 6, Order 8. No doubt, judicial decisions have recognized subtle distinctions between what is called a legal set-off and an equitable set-off. It is argued on behalf of the petitioner, that what is contemplated by Rule 6, Order 8, Civil P.C., is only a legal set-off. Claims by way of equitable set-off are said to be outside the scope of this rule. One test applied for distinguishing she two sorts of set-off is whether the claim is for an ascertained sum of money or only for unliquidated damages. It will be going too far to contend that the moment the claim for a certain amount is stated to be by way of damages, it must be treated as a claim for an unliquidated sum and therefore it comes under equitable set-off only. The observations in the decision in Narasimha Rao V/s. Zamindar of Tiruvarur AIR 1920 Mad 819 go to show that the claim of the present defendant in his written statement would not strictly come under equitable set-off. In that case, the defendant asked for ascertainment of the amount due to him from the plaintiff on account of dealings between them and for the passing of a decree in his favour for any sum found to be due to him on such ascertainment, in excess of what is found due to the plaintiff.

(3.) In that case the defendant did not even fix a certain amount as due to him from the plaintiff. Strictly speaking, such a case would be one of equitable set-off. In the present case, the defendant sets out the particulars of the claim made by him as one arising from the transaction of sale which led to the execution of the promissory note in favour of the plaintiff. By reason of the breach of the covenants alleged to have been committed by the plaintiff, it is stated that the defendant sustained damages to the extent of Rs. 2,000, which he claimed to set off against the amount claimed by the plaintiff. In the first place the defendant himself claimed a specific amount alleged to be due to him on account of damages and as such it cannot be said that his claim is only for unliquidated damages. Even stretching the point in favour of the defendant and holding that his claim in the present case is not one strictly within the purview of Order 8, Rule 6, Civil P.C., I am doubtful whether he can escape the liability of paying the court-fee on the sum of Rs. 2,000, fixed in his written statement as due from the plaintiff. In Art. 1, Sch. 1, Court-fees Act, it is stated that a written statement pleading a set-off or a counter-claim is liable to stamp duty as in the case of a plaint.