Sankara Pillai Vs. Parameswaran Pillai - Court Judgment

Excerpt:
- - ' it follows that the finding of the court below that as a legal set off, the defendant's claim is not admissible is perfectly justified. ' i respectfully agree and overrule the plea as based on equitable considerations, as well.ordervaradaraja iyengar, j.1. this revision is by the defendant, against an interlocutory order of the court below, holding that the set off claimed by him cannot be gone into.2. the suit was for recovery of the principal of rs. 300/- and interest at 12 per cent thereon due on a promissory note dated 18-7-1953 and executed by the defendant in favour of the plaintiff. the defendant in his written statement admitted the execution of the promissory note and his liability for the principal amount but set up contemporaneous agreement that the interest provision in the promissory note was not intended to be enforced. he also put forward a claim to set off an amount of rs. 204-5-7 being the balance of advances alleged to bave been made by him ud to 11-9-1956 for conduct of certain suits of the.....

Judgment:
ORDER

Varadaraja Iyengar, J.

1. This revision is by the defendant, against an interlocutory Order of the court below, holding that the set off claimed by him cannot be gone into.

2. The suit was for recovery of the principal of Rs. 300/- and interest at 12 per cent thereon due on a promissory note dated 18-7-1953 and executed by the defendant in favour of the plaintiff. The defendant in his written statement admitted the execution of the promissory note and his liability for the principal amount but set up contemporaneous agreement that the interest provision in the promissory note was not intended to be enforced. He also put forward a claim to set off an amount of Rs. 204-5-7 being the balance of advances alleged to bave been made by him UD to 11-9-1956 for conduct of certain suits of the plaintiff and at his request and produced three books of account maintained by him in that connection.

He pleaded further that the plaintiff had agreed to have the principal amount under the promissory nore adjusted as against the above said balance and was accordingly depositing into court the amount of Rs. 95-10-5Ps. ultimately due from him. The defendant's written statement was accompanied by the court fees on the amount of Rs. 204 and odd sought to be set off. On the motion of the plaintiff, the defendant's right to prove the set off as so made was heard as a preliminary issue. The court below held in favour of the plaintiff that the defendant was not entitled to claim set off in the suit and as such the account books sought to be adduced in evidence were inadmissible. Hence this revision.

3. In arriving at its conclusion the court below found that, on the pleadings, it was not the defendant's case that there was a settlement of accounts to which the plaintiff was a party and particular sum was then ascertained to be due to the defendant but, on the other hand, the amount actually due had still to be ascertained by the taking of accounts through court and so the set off fell outside the terms of Order 8, Rule 6 of the Civil Procedure Code.

The Munsiff did not consider the aspect of equitable set off. Learned counsel for the defendant however urges that the claim made by the defendant being Tor the specified sum of Rs. 204 and odd, there was no reason not to consider it as an 'ascertained' sum within the meaning of Order 8, Rule 6. Alternatively and assuming that the set off was for an unascertained amount, he contended that the court below should have dealt with the matter as an equitable set off.

4. Taking up first, the aspect of legal set off it is no doubt true that the defendant was putting forth the claim for the specific amount of Rs. 204 and odd for purpose of set off. But every claim for a specified sum is not necessarily for an 'ascertained sum of money legally due' within the meaning of Order 8, Rule 6, C. P. C. It is unnecessary in this connection to go to the extent of the dictum in Mt. Dilter Koer v. Harkhoo Singh, AIR 1916 Pat 167, that the claim to be ascertained must be

'beyond challenge and beyond dispute, concluded and conclusive.'

It may, for example, be a sum not admitted by the other side and not decreed by court. But it must in any event be a cross-claim for a liquidated amount, that is, debts due for liquidated sums or demands which can be ascertained with certainty at the time of tbe pleading and not what may ultimately be ascertained by the court at the time of passing of the decree. So, while the fact that an arithmetical calculation is necessary to arrive at the total sum may not matter, Ponnan v. Pakkianathan, 15 Trav. LR 68 -- paid-up subscriptions by the defendant, unprized subscriber in a chitty scheme denied by the plaintiff foreman, the I fact that the amount can be ascertained only after a controversial process, Damodaran Nambiar v. Narayanan Nambiar, 24 Trav. LJ 436 -- (account I to be settled as a result of litigation), will turn the scale in the application of the definition

5. In Galstaun v. Radhakissen, AIR 1931 Cal 23, learned Judges refused to hold an amount due after taking accounts of principal and interest and for costs of the plaintiff in a mortgage decree, as an ascertained sum for this purpose. It will get ascertained only after such accounts and enquiries had been taken and made and it did not suffice to point to certain sums mentioned in the mortgage deed and referred to in the plaint as ascertained. Similarly in Girdharilal v. Surajmal, AIR 1940 Nag 177, the learned Judges observed;

'A claim stated approximately and requiring accounts to be gone into is not an ascertained sum of money and set off cannot be allowed in respect of such claim'

See also Kooverbhan v, Madandas, AIR 1919 Sindh 88,

6. Learned counsel referred to Har Prasad v. Ram Sarup Radhakishcn, AIR 1924 All 872 and Bhikanrao v. Shridhar, AIR 1931 Nag 12. In the first of these cases, the defendants alleged that there were definite sums of debit and credit between the parties and that on the date of suit a definite known balance, the amount of which . was given in the written statement, was due to the defendant from the plaintiff and this balance was shown in their account books as due on the date of suit. The court said that it was not a claim for accounts and that defendant could claim set off. This decision does not help the defendant here. For the Judges were clear that

'If this were claim for accounts in the sense that the defendants were asking the plaintiff to render an account and the sum due to the defendants could only be known to the latter when the accounts were rendered, there might be great force in the view taken by the court below'

viz., that there was no ascertained sum wilhin the scope of Order 8, Rule 6. In the latter case AIR 1931 Nag 12, the set off claimed was for a sum alleged to have been spent for the necessaries of a minor in suit filed by a guardian of the minor on a promissory note executed by the defendant. Learned Judges said that the amount was ascertained and they contrasted a claim for unliquidated damages. This decision does not touch our question. Indeed, summing up the whole position Chitaley's C. P. C. 6th Edn. p. 2397 says:--'An ascertained sum of money' means a sum of money of which the amount is fixed and known; it does not necessarily mean a sum admitted by the other side or decreed by Court; the words are used in contradiction to unliquidated damages. The mere fact that an arithmetical calculation is necessary to arrive at the total sum cannot render such total an unascertained sum of money ..............

But where the set off is in respect of a claim for damages which are not ascertained, or where the amount can be ascertained, only on taking accounts or by determining the quantum of the share due to the defendant, or where the claim is for interest On a sum due to the defendant fixed by him at an arbitrary rate, this rule will not apply.' It follows that the finding of the court below that as a legal set off, the defendant's claim is not admissible is perfectly justified.

7. Taking up now the aspect of equitable set off, it is true that the cross demand here of the defendant is made to link up with the plaintiff's promissory note claim bv virtue of specific agreement of the plaintiff alleged, that there will be conjoint settlement of both. Such agreement is denied by the plaintiff and may or may not be true. But the question of entertaining the cross demand as an equitable set off depends upon the discretion of the court. It could not be doubted that there would be considerable delay in investigating it. The plaintiffs claim in suit on the other and was admitted, except of course in regard to the interest but that was a simple matter and easily disposed of. There is no reason therefore why the plaintiff should wait until the defendant's cross claim was investigated.'. See 24 Trav, LJ 436 already referred to where the learned Judges after referring to Doebson and Barlow v. The Bengal Spinning and Weaving Co., ILR 21 Bom 126 observed:

'The power of this court in regard to this matter is of a discretionary character, and it has to be exercised on general principles of equity. A suit for settlement of accounts must take a considerable time for culminating in a final decision and in the absence of allegation or proof that if a decree be obtained against the 5th defendant it will turn out waste paper, we do not see why the plaintiff should be made to wait for his money ---to which he is entitled -- until the termination of what may turn out to be a protracted litigation.'

I respectfully agree and overrule the plea as based on equitable considerations, as well.

8. It follows, therefore, there is no substancein this revision petition. It is accordingly dismissed with costs.