Ss. 110-111 CHAPTER VIII. OF WRITTEN STATEMENTS AND SET-off. Written statements. 110. The parties may, at any time before or at the first hearing of the suit, tender written statements of their respective cases, and the Court shall receive such statements, and place them on the record. Written statement must be tendered at or before the first hearing.— Though this is the general rule, there are two cases in which written statements may be filed after the first hearing, namely, under ss. 111 and 112, provided the permission of the Court is previously obtained. Particulars of set-off to be given in written plaintiff's demand statement. 111. If in a suit for the recovery of money the defendant claims to set-off against the plaintiff's demand any ascertained sum of money legally recoverable by him from the plaintiff, and if in such claim of the defendant against the plaintiff both parties fill the same character as they fill in the plaintiff's suit, the defendant may, at the first hearing of the suit, but not afterwards, unless permitted by the Court, tender a written statement containing the particulars of the debt sought to be set-off. Inquiry. The Court shall thereupon inquire into the same, and if it finds that the case fulfils the requirements of the former part of this section, and that the amount claimed to be set-off does not exceed the pecuniary limits of its jurisdiction, the Court shall setoff the one debt against the other. Effect of set-off. Such set-off shall have the same effect as a plaint in a cross-suit, so as to enable the Court to pronounce a final judgment in the same suit, both on the original and on the cross-claim ; but it shall not affect the lien, upon the amount decreed, of any pleader in respect of the costs payable to him under the decree. Illustrations. (a.) A bequeaths Rs. 2,000 to B, and appoints Chis executor and residuary legatee, B dies and D takes out administration to B's effects. C pays Rs. 1,000 as surety for D. Then D sues C for the legacy. C cannot set-off the debt of Rs. 1,000 against the legacy, for neither C nor Dfills the same character with respect to the legacy as they fill with respect to the payment of the Rs. 1,000. (b.) A dies intestate and in debt to B. C takes out administration to A's effects, and B buys part of the effects from C. In a suit for the purchase-money by Cagainst B, the latter cannot set-off the debt against the price, for C fills two different characters, one as the vendor to B, in which he sues B and the other as representative to A. (c.) A sues B on a bill of exchange. Balleges that A has wrongfully neglected to insure B's goods, and is liable to him in compensation, which he claims to set-off. The amount not being ascertained cannot be set-off. (d.) A sues B on a bill of exchange for Rs. 500. B holds a judgment against A for Rs. 1,000. The two claims being both definite, pecuniary demands may be set-off. (e.) 4 sues B for compensation on account of a trespass. B holds a promissory note for Rs. 1,000 from A, and claims to set-off that amount against any sum that A may recover in the suit. B may do so, for, as soon as A recovers, both sums are definite pecuniary demands. (f.) A and B sue C for Rs. 1,000. C cannot set-off a debt due to him by A alone. (h.) A owes the partnership firm of B and C Rs. 1,000. B dies, leaving C surviving. A sues C for a debt of Rs. 1,500 due in his separate character. C may set-off the debt of Rs. 1,000. I. The suit must be one for the recovery of money. II. As respects the amount claimed to be set-off, it must be an ascertained sum of money [see ills. (c), (d), and (e)] that is legally recoverable; III. recoverable by the defendant, or by all the defendants, if more than one [see ill. (g)]; IV. recoverable by the defendant from the plaintiff, or all the plaintiffs, if more than one [see ill. (f)]; V. it must not exceed the pecuniary limits of the jurisdiction of the Court in which the suit is brought; VI. both parties must fill, in the defendant's claim to set-off, the same character as they fill in the plaintiff's suit [see ills. (a) and (b)]. I. The suit must be one for the recovery of money.-In Nan Karay v. Ko Htaw (m) their Lordships of the Privy Council observed that it was doubtful whether a suit for an account was a suit for money. In a subsequent Allahabad case (n) it was held that a suit for dissolution of partnership with a prayer that such balance as might be found due to the plaintiff upon taking the partnership accounts might be paid to him, was a suit for money, and that a plea of set-off might therefore be raised by the defendant in such a suit. II The amount to be set-off must be an ascertained sum of money and not damages undetermined. With this read ills. (c), (d), and (e) to the section. In ills. (d) and (e), the claim is an ascertained sum; not so in illustration (c), where the amount proposed to be set-off is for unliquidated damages. In the case mentioned in illustration (c), the defendant may bring a cross-suit against the plaintiff. In ill. (d), the amount proposed to be set-off by Bis the amount of a decree, and this may be set-off against A's claim, though В may not have taken any steps to enforce the decree (0). Equitable set-off. We now proceed to consider cases in which the defendant will be allowed to set-off even an unascertained sum which sounds in damages. Those are cases where the cross-demands arise out of one and the same transaction, or are SO connected in their nature and circumstances that the transactions may be looked upon as one and the same. In such cases Courts of Equity in England have held (m) 13 Cal. 124,13 I. A. 48. (n) Ramjiwan v. Chand Mal, 10 All. 587. (0) Bharat v. Rameshwar, 30 Cal. 1066. S. 111 S. 111 that it would be inequitable to drive the defendant to a separate cross-suit, and 1. Illustrations. A sues B to recover Rs. 6,000 due under a contract. B admits the amount, but claims to set-off several sums of money alleged to be damages sustained by reason of A's breach of certain terms of the same contract. B is entitled to claim the set-off, for the claim arises from the same transaction: Kistnasamy v. Municipal Commissioners for Madras, 4 Mad. H. C. 120; Pragi Lal v. Maxwell, 7 All. 284. 2. A agrees to sell, and B agrees to purchase 200 bales of wool. B takes delivery of 170 bales, and is ready and willing to take delivery of the rest, but A fails to deliver them. A sues B for the price of the 170 bales. B claims to setoff the damages sustained by him by reason of A's failure to deliver the remaining bales. Bis entitled to claim the set-off, as the claim arises out of the same transaction: Kishorchand v. Madhowji, 4 Bom. 407; Niaz v. Durga, 15 All. 9; Nand Ram v. Ram Prasad, 27 All. 145. 3. A sues B, his master, for Rs. 800, being arrears of salary. B claims to set-off Rs. 625, being the loss sustained by him by reason of neglect and misconduct on the part of A as his servant. B is entitled to claim the set-off, as his claim arises out of the same relation from which A's claim arose, namely, that of master and servant: Chisholm v. Gopal Chunder, 16 Cal. 711; Phagbat v. Bamdeb, 11 Cal. 557. (4) A (mortgagee) sues B (mortgagor) to recover the principal and interest due on a usufructuary mortgage. B claims to set-off the loss alleged to have been occasioned by A's failure as mortgagee in possession to make repairs to the mortgaged property. B is entitled to claim the set-off: Shiva v. Jaru, 15 Mad. 290. The amount claimed to be set-off must be legally recoverable. A defendant cannot therefore set-off a claim barred by limitation (qq). III. A separate debt cannot be set-off against a joint and several debt. Thus in ill. (g), B cannot set-off the debt due to him alone by A, for it is a separate debt, while the suit is to recover a joint and several debt. (p) 2 Mad. H. C. 296. (q) Ramdeo v. Pokhiram, 21 Cal. 419: Dob- 126; Dhundiraj v Ganesh, 18 Bom. 721. (99) Pragi Lal v. Maxwell, 7 All. 284. V. The amount claimed to be set-off must not exceed the pecuniary limits of the jurisdiction of the Court in which the suit is brought.-A sues B in a Presidency Small Cause Court for Rs. 1,000. B claims to set-off a sum of Rs. 2,700, and claims judgment for Rs. 1,700. The Small Cause Court has no jurisdiction to try the question of set-off, the value being above Rs. 2,000 (r). Not only the amount but also the nature of the set-off must be within the cognizance of the Court in which the suit is brought. Hence a Court cannot entertain a claim to a set-off unless such claim, if made the subject of a suit, would fall within its jurisdiction (s). VI. Same character.-Ills. (a) and (b) are cases in which the parties do not fill the same character (t). The following is a case in which the parties fill the same character: A suit is brought by a Hindu son as the heir and representative of his father to recover from B a certain debt due to the father. B claims to set-off a debt due to him by A's father. B may do so, for both the parties fill the same character (u). Effect of set-off.-A written statement containing a claim of set-off must be regarded as a plaint in regard to such set-off, and must be stamped according. ly (v). Set-off in winding up and insolvency proceedings.-A director cannot set-off a debt due to him from the company against a claim made by the liquidator in a voluntary or compulsory winding up, the reason being that the equity of the general creditors intervenes to prevent a set-off in such a case (w). But a director may set-off a debt due to him from the company against a claim made by the company (x). As to set-off in insolvency, see Insolvent Debtors Act, 11 and 12 Vict., c. 21, s. 39 (y). No written statement to be received after first hearing. 112. Except as provided in the last preceding section, no written statement shall be received after the first hearing of the suit : Provided that the Court may at any time require a written statement, or additional written. statement, from any of the parties, and fix a time for presenting the same: Provisos. Provided also that a written statement, or an additional written statement, may, with the permission of the Court, be received at any time for the purpose of answering written statements so required and presented. Object of supplemental written statement.-The object of an additional written statement is to supply what may have been omitted in the first written statement, and not to contradict it (z). Ss. 111-112 S8. 113-116 113. If any party from whom a written statement is so required fails to present the same. within the time fixed by the Court, the Court may pass a decree against him, or make such order in relation to the suit as it thinks fit. Procedure when party fails to present written statement called for by Court. 114. statements. Written statements shall be as brief as the nature Frame of written of the case admits, and shall not be argumentative, but shall be confined as much as possible to a simple narrative of the facts which the party by whom or on whose behalf the written statement is made believes to be material to the case, and which he either admits or believes he will be able to prove. Every such statement shall be divided into paragraphs, numbered consecutively, and each paragraph containing as nearly as may be, a separate allegation. Rule as to construction of pleadings in India.-A plaintiff will be held to the state of facts alleged in his plaint or consistent therewith (a). Similarly a defendant will be held to the state of facts alleged in his written statement or consistent therewith (b). But pleadings in India must not be construed with the same strictness as in English Courts (c). Hence what is not denied cannot be looked upon as admitted. Thus if an allegation made by a plaintiff in his plaint is not denied by the defendant in his written statement, the defendant will not be held, by reason of his not having denied it, to have admitted the truth of the allegation (d). See Evidence Act, 1872, s. 58. Written statements 115. Written statements shall be signed and verified in the manner hereinbefore provided for to be signed and veri- signing and verifying plaints, and no written statement shall be received unless fied. it be so signed and verified. Power of Court as to argumentative, prolix or irrelevant written statement. 116. If it appears to the Court that any written statement, whether called for by the Court or spontaneously tendered, is argumentative or prolix, or contains matter irrelevant to the suit, the Court may there, or may, by an order to be endorsed same, or return it to the party by whom it was made for amendment within a time to be fixed by amend it then and (a) Eshenchunder v. Shamachurn, 11 M.I.A.7. (c) Madho Persad v. Gajudhar, 11 Cal. 111, 11 I.A. 186. (d) Natha v. Jodha, 6 All. 406. |