Sunder Lal Surendra Kumar Jain vs Madan Mohan Joginder Lal

R.S. Pathak, C.J.—This is a Defendant''s revision petition against an order of the learned Subordinate Judge, Rohru, holding the Defendant liable to pay Court fee on his written statement.

The Plaintiff filed a suit alleging that he had remitted a sum of Rs. 2,500 to the Defendant for supply of five boxes of Biree, that the Defendant made a supply worth Rs. 1,467.80 only and therefore, the Plaintiff claimed a balance of Rs. 1,032.20 as principal and Rs. 371.52 paise as interest thereon.

The Defendant, in his written statement, admitted receiving Rs. 2,500 from the Plaintiff and also that he had supplied goods worth Rs. 1,467.80 only. But, he pleaded, the Plaintiff had purchased goods from him worth Rs. 1,066.30 and even after adjusting that amount against the amount claimed by the Plaintiff a sum of Rs. 46.10 on account of principal and Rs. 383.76 on account of interest thereon remained payable by the Plaintiff to the Defendant. Accordingly, the Defendant claimed a decree for Rs. 429.86 against the Plaintiff.

The Defendant paid court fee on his claim of Rs. 429.86. An objection was raised that the Defendant was liable to pay court fee on the entire amount. During the proceedings, the Defendant relinquished his claim to the sum of Rs. 429.86, and contended that he was not liable to pay any court fee on the remaining amount of Rs. 1,032.30 of which he claimed adjustment against the claim of the Plaintiff.

The learned Subordinate Judge, Rohru, has held the Defendant liable to pay a court fee on the sum of Rs. 1,032.30

After hearing learned Counsel for the parties it seems to me that the learned Subordinate Judge is right. Upon the facts of the case it appears that what the Defendant claims is in substance a set off against the claim of the Plaintiff. The plea taken by him cannot be described as a plea of adjustment. The two transactions, the one on the basis of which the suit has been brought and the other on the basis of which the Defendant claims that he is not liable to pay any money, are separate and distinct transactions and are not related to each other in any way. It has been held in Pramada Prasad Mukherjee Vs. Sagarmal Agarwalla and Others, that the essence of a set off is that the Defendant should have a cause of action against the Plaintiff apart from the suit and not merely as a defence to the Plaintiff''s claim. The transaction on which the Defendant relies in the present case provides a cause of action for a suit separate from that on the basis of which the Plaintiff has brought the present suit. It is not a case where the Defendant claims in respect of the same transaction that by adjustment a smaller sum of money, or no money at all, will be found due to the Plaintiff. Merely because the Defendant has relinquished his claim to a decree for the balance of Rs. 429.86 does not put a different light on the set off claimed by him. It has been held in Durga Prasad Vs. Swami Avidya Nand Guru Swami Hamarata Nand, . that where in a suit to recover the price of a thing supplied if the Defendant in his written statement alleges non-supply of the thing and claims a certain sum as his loss the cause of action for the damages being entirely different it is a case of a set off and court fee is payable on the amount claimed. In Punjab Electric Power Co. Ltd. v. Suraj Kishan AIR 1937 Lah. 62 . it was, pleaded by the Defendant Company in answer to a suit by the Plaintiff for recovery of a sum on account of his Director''s fees that a sum was in fact due to the Defendant Company from the Plaintiff on account of interest due on the calls on the Plaintiff''s shares. The Defendant Company said that the amount of the Plaintiff''s liability had been adjusted against the sum due from the Defendant Company to him. The Lahore High Court held that the adjustment could not legally be made without the consent of the Plaintiff, and there was no connection between the Defendant Company''s liability for the Director''s fees and the Plaintiff''s liability for interest due on calls on his shares, and accordingly held the Defendant Company liable to pay court fee on the amount of the interest claimed by it. Learned Counsel for the Petitioner-Defendant relies on Somraj Vs. Jethmal and Others, In that case, however, the Defendant''s plea was that he had paid an amount in excess of the arrears of the rent claimed by the Plaintiff and it was also stated that to the extent of the excess the Defendant would file a separate suit; in the circumstances the court held that the plea raised by the Defendant did not constitute a set off but was a mere plea of adjustment and no court fee was payable thereon. It appears that the claim made by the Plaintiff and the plea raised by the Defendant related to a liability on account of rent for an identical period and, therefore, no question of two distinct and separate transactions could arise. Reference has also been made to State of Madhya Pradesh Vs. Raja Balbhadra Singh, but in that case the court found that the Plaintiff and Defendant had an account between them and the Defendant was entitled to make adjustments in that account of money due to him from the Plaintiff. In the present case, the Defendant does not claim that he is entitled on the basis of any agreement between the parties to adjust the amount claimed by him to be due from the Plaintiff in any account between the parties.

In the circumstances I endorse the view taken by the learned Subordinate Judge and hold that the Defendant is liable to pay court fee on the sum of Rs. 1,032.30.

The revision petition is dismissed with costs.