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Suit No. 4 of 1950. Question of Court‑fee in respect of set off decided on 5th September, 1951.

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----‑Equitable‑Whether not subject to Court‑fees- Civil Procedure Code (V of 1908), O.VIII. r. 6 and O. XX, r. 19 (3) ; Schedule IV‑Court‑fee Act (III of 1870)), S, 7 (1), Schedule 1, Art. 1.

The plaintiff's suit was for Rs. 20,000 against which the defendant claimed an equitable set off of Rs. 70,000. On the defendant's contention that no Court‑fee was payable on an equitable set off or alternatively that it was only payable on the difference between the set off and the amount claimed by the plaintiff, i.e., on Rs. 50,000 only.

Held, that Court‑fee was payable on the entire amount claimed by way of equitable set off there being no distinction between an equitable and legal set off in the matter of Court‑fee.

S. Jawad Ali Shah v. Commissioner of Income‑tax U. P. etc Ajmer Marwar, A I R 1950 All. 237 ; Dr. Jessie George LV. N. S. v. Mrs. Shakunlala Hari Das A I R 1950 East Pb. 225 rel.

Ram Das v. Dwarka Das, A I R 1930 All. 875 ; Madan Mohan Garg v. Bohra Ram Lal, A I R 1934 All. 115, mentioned.

W. Lobo, for Plaintiff.

Choithram, for Defendant.

E. V. Castellino, A. P. P., for Crown.

‑The plaintiff has filed this suit to recover from the defendant Rs. 20,000 deposited with the defendant under clause 6 of the .agreement between them dated 30th May, 1949. Annexure A of the plaint.

In paras. 4, 6 and 8 of the written statement, the defendant set up an equitable set off limited to Rs. 70,000 which was said to arise out of a breach by the plaintiff under clause 3 of the agreement. After giving credit for Rs. 20,000 claimed by the plaintiff, the defendant prayed for a decree against the plaintiff for Rs. 50,000.

The question which has arisen is what Court‑fee, if any, is payable upon the set off claimed by the defendant in his written statement.

Legal set off is provided for in Order VIII, rule 6 Civil P C but the existence of cases of equitable set off is recognized by the Code in Order XX, rule 19 (3).

Section 155 and Schedule IV of the Code of Civil Procedure 1908 made " a written statement pleading a set off or counter‑claim" subject to Court‑fee, and although that Code provided for a legal set off, and envisaged an equitable set off, it made no difference between them for the purpose of Court- fees payable on them.

Mr. Choithram argued that the term set off ' used in Schedule IV, Civil P C, had reference to only a legal set off which is provided for in Order VIII, rule 6, and not to an equitable set off, but this argument ignores the provisions of Order XX, rule 19, sub‑rule (3), wherein an equitable set off is envisaged in the words "whether the set off is admissible under rule 6 of Order VIII or otherwise."

Section 7 (1) of the Court‑fees Act, 1870, lays down that the amount of Court‑fee payable in suits for money including suits for damages or compensation shall be computed according to the amount claimed. There is no doubt that the defendant could have filed a separate suit for the sum of Rs. 70,000. In order to save multiplicity of suits, however, he chose to set up his claim by way of an equitable set off, as the law permitted him to do. I can see, therefore, no reason on an interpretation of the plaint words used in these provisions of the Court‑fees Act, for accepting either of the two contentions raised by Mr. Choithram for the defendant, namely, that no Court‑fee was payable on the equitable set off or alternatively that it was payable only Rs. 50,000 for which the defendant asked for a decree against the plaintiff.

Mr. Choithram relied on the two cases reported in Ram Das v. Dwarka Das, A I R 1930 All. 875 and in Madan Mohan Garg v. Bohra Ram Lal A I R 1934 All. 115, but these cases did not consider the provisions of the Court‑fees Act, and have since been dissented from in S. Jawad Ali Shah v. Commissioner of Income‑tax U. P. etc. Ajmer Marwar, A I R 1950 All. 237 where cases of the Calcutta, Bombay, Patna and Nagpur High Courts also have been discussed, and the result arrived at that Court‑fee is payable upon the entire amount claimed by a defendant, there being no distinction between a legal and an equitable set off for the purpose of Court‑fee. To the same effect is the case reported in Dr Jessie George W. N. S. v. Mrs. Shakunlala Hari Das A I R 1950, East Pb. 225.

I hold therefore that the set off of Rs. 70,000 contained in the written statement of the defendant is subject to Court‑fee.

A. H.

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