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1936 DIGILAW 108 (CAL)

Hari Ananda Shaha Poddar v. Mohummad Esahak Mia

1936-02-28

body1936
JUDGMENT R.C Mitter, J. - The Plaintiffs who are the Appellants before me sued the Defendant for Rs. 836-0-9. The Defendant pleaded that the Plaintiffs were not entitled to claim so much and further pleaded that he was entitled to set off against the said claim a sum of Rs. 477-4. The lower Appellate Court has held that the Plaintiffs can claim from the Defendant the sum of Rs. 484-1-0 and that the Defendant is entitled to set off against the said claim the sum of Rs. 357-14-3. The Plaintiffs have accordingly been given a decree to a net sum of Rs. 126-2-9. The Court of appeal below has proceed-ed on the footing that the Defendant's claim can be and ought to be allowed as equitable set off. The Plaintiffs have urged before me that the Court of appeal below ought to have found that they were entitled to Rs. 836-0-9 and that the Defendant's plea of set off ought to have been disallowed as being barred by time. For following the controversy between the parties the following facts are material. 2. The Plaintiffs were the owners of a large number of properties, which they held in different rights. Some of them were zemindaries and some tenures. One of the zemindary properties was Touzi No. 294 of the Tipperah Collectorate which comprised lands in the Districts of Tipperah, Noakhali, Dacca and Faridpur. The Plaintiffs' share of the revenue was Rs. 1812 odd. By a conveyance dated the 12th March, 1926 the Plaintiffs sold to the Defendant for Rs. 45000 all the said tenures and the lands of Touzi No. 294 in the District of Tippera and Noakhali only, they retaining the land included in the said Touzi situate in the District of Dacca and Faridpur. In the said conveyance the revenue payable for Touzi No. 294 was apportioned, the purchaser (Defendant) agreeing to pay Rs. 1,346 odd and the vendors (the Plaintiffs) the balance. There were two other conditions in the said conveyance. The purchasers were given all arrears of rent, cesses, etc. due from the tenants and they undertook to discharge all the liabilities for arrears of rent and cesses, etc, existing at the date of the kobala to the superior landlords of the tenures purchased. 3. There were two other conditions in the said conveyance. The purchasers were given all arrears of rent, cesses, etc. due from the tenants and they undertook to discharge all the liabilities for arrears of rent and cesses, etc, existing at the date of the kobala to the superior landlords of the tenures purchased. 3. At the time of the conveyance a suit f or rent was pending against the Plaintiffs in respect of one of the properties sold. The arrears of rent and cesses claimed in that suit was Rs. 484-1. That suit was decreed for Rs. 695 odd on the 15th March, 1926. Rs. 122 odd represented the damages allowed by Court in lieu of interest and Rs. 89 as costs. The said sum, together with interest, was realised from. the Plaintiffs by the landlord on the 30th September, 1928. The present suit which was instituted within three years of that date is for the recovery of the same from the Defendant on the ground that the Defendant took upon himself by the terms of the aforesaid conveyance, the liability to pay the same, which represented arrears of rent, cesses and interest, etc. 4. The Defendant paid the whole of the revenue for Touzi No. 294 for the three kists of 1926, i.e., of March, June and September. He paid the same to save his estate from sale as the Plaintiffs did not pay what they undertook to pay on the terms of the aforesaid conveyance. The sum of Rs. 477-4 which the Defendant claims by way of set off represents with interest the sum so paid on account of the Plaintiffs' share of revenue. This claim to set off was made three years. after payment and it is admitted that the Defendant's claim to set off cannot be entertained now unless it is by way of equitable set off. 5. Mr. Roy Choudhury has urged that a claim to set off a definite sum of money can only be put forward under Or. 8, r. 6 of the Code, and an equitable set off can only be urged, subject to some other limitations only when the claim is to an unascertained amount. I do not agree with that contention. 6. The claim by way of equitable set off can be urged when the claim of the Defendant is to an ascertain-ed amount also. 8, r. 6 of the Code, and an equitable set off can only be urged, subject to some other limitations only when the claim is to an unascertained amount. I do not agree with that contention. 6. The claim by way of equitable set off can be urged when the claim of the Defendant is to an ascertain-ed amount also. If any authority is needed the case of Ramdheri Singh v. Premanand Singh 19 C.W.N..1183 (1913) will furnish one. The claim for equitable set off will not, however, arise simply because there are cross-demands; there must be some connection between them which will make it inequitable to drive the Defendant to a separate suit. The cases of mutual debts and credits are the simplest. In such cases there is " knowledge on both sides of an existing debt due to one party and a credit by the other party founded on and trusting to such debt as a means of discharging it." It is the last-mentioned element that raises in equity a claim to set off. If the two claims arise out of the same transaction, the Defendant's claim must be adjudicated in the Plaintiffs' suit for his money claim. If the cross demands are so connected in their nature and circumstances as to make it inequitable that the Plaintiff should recover his in the suit but the Defendant be driven to another suit, the claim to set off must be allowed. In the case before me the basis of both claims is the contract embodied in the conveyance, the terms of which I have recited above. That in my judgment is the connecting link between the two demands, the demand of the Plaintiffs and that of the Defendant, and I am of opinion that it would be inequitable to drive the Defendant to a separate suit only to be met by a plea of limitation. I accordingly hold that the Defendant has been rightly allowed set off in this case. 7. This leads me to determine the amount of the cross-demands. In my judgment the Defendant undertook all liability in respect of the arrears of rent and cess due to the landlord. I accordingly hold that the Defendant has been rightly allowed set off in this case. 7. This leads me to determine the amount of the cross-demands. In my judgment the Defendant undertook all liability in respect of the arrears of rent and cess due to the landlord. He is therefore liable not for the arrears of rent and cesses but also for interest on these arrears and sums of money which are really in lieu of interest but not for the costs of the suit. 8. The Plaintiff's claim must therefore be taken to be the amount of rent and cesses for which the suit for rent was brought plus Rs. 122 which was given as damages in lieu of interest, that is Rs. 606-1. This sum he is entitled to recover with interest at six per cent. from the date of payment. The Defendant is entitled to set off the sum paid for revenue in excess of his share, that is Rs. 357-14-3 together with interest at six per cent. per annum from the date of his payment. The net result is that there will be a decree in favour of the Plaintiff for Rs. 239-6-6 with interest at 6 per cent. per annum from this date. The appeal and the cross-objections are accordingly allowed in part. The parties to bear their respective costs throughout.