AJITBHAI B. MISTRY v. BOMI K. DANGORA — 1991 DIGILAW 388 (GUJ)

DIVECHA, J. ( 1 ) THE Original Plaintiff of Civil Suit No. 1115 of 1975 decided by the 3rd Joint Civil Judge (J. D.) at Surat on 30/09/1977 has preferred this Second Appeal against the judgment and the decree passed by the learned Extra Assistant Judge of Surat on 16/11/1977 in Regular Civil Appeal No. 308 of 1977. Thereby the learned appellate. Judge was pleased to accept the appeal and to set aside the judgment and the decree passed by the trial Court on 30/09/1977 in Regular Civil Suit No. 1115 of 1975 decreeing the plaintiffs suit for the principal amount. The learned Appellate Judge also dismissed the present Appellants cross-objections in the present respondents appeal to the extent the claim for interest was not allowed by the trial Court. ( 2 ) THE facts giving rise to the present appeal may be summarised thus. The present appellant filed one suit for a decree in the sum of rs. 8,000/- against the present respondent with interest at the rate of 6 per cent per annum. According to the plaintiff he made some articles of furniture for the present respondent and he claimed Rs. 6,847. 50 ps. towards the labour charges and the price of materials used by him in making those articles of furniture. He claimed Rs. 1,153-00 by way of interest on that amount. That suit was filed in the Court of the Civil judge (S,d.) at Surat. It was registered as Regular Civil Suit No. 1115 of 1975, The present respondent filed his written statement and resisted the suit on various grounds. He inter alia contended that he did supervision work for the present appellant with respect to interior designing work in one Neelam Hotel and at some other place and it was understood between both of them that the present appellant should adjust that amount by preparing articles of furniture for the present respondents house. The suit appears to have been assigned to the learned 3rd Joint Civil Judge (J. D.) at Surat. The learned trial Judge raised the necessary issues on the pleadings of the parties. After recording evidence and hearing the parties, by his judgment and decree passed on 30/09/1977 in regular Civil Suit No. 1115 of 1975, the learned trial Judge decreed the present appellants suit to the extent of the principal amount in the sum of Rs. 6,847. 50 ps. After recording evidence and hearing the parties, by his judgment and decree passed on 30/09/1977 in regular Civil Suit No. 1115 of 1975, the learned trial Judge decreed the present appellants suit to the extent of the principal amount in the sum of Rs. 6,847. 50 ps. That aggrieved the present respondent. He therefore carried the matter in appeal before the District Judge of Surat. His appeal came to be registered as Regular Civil Appeal No. 308 of 1977. The present appellant filed his cross-objections in appeal to the extent his claim for interest on the principal amount was not accepted by the learned trial Judge. That appeal appears to have been assigned to the learned Extra assistant Judge of Surat. By his judgment and decree passed on 28/06/1979 in Regular Civil Appeal No. 308 of 1977, the learned Appellate Judge was pleased to accept the appeal and to set aside the judgment and the decree passed by the trial Court. In the process, the learned Appellate Judge also dismissed the cross-objections filed by the present appellant in the appeal. That aggrieved the present appellant. He has therefore preferred this Second appeal questioning the correctness of the judgment and the decree passed by the learned Extra Assistant Judge of Surat on 28/06/1979 in Regular civil Appeal No. 308 of 1977. ( 3 ) SHRI Desai for the appellant has submitted that the learned trial Judge ought to have considered the plea of the defendant as a set off and not an adjustment. In that view of the matter, runs the submission of Shri Desai for the appellant, the learned Appellate Court ought not to have entertained the present respondents plea of set off in absence of payment of the required court-fees thereon. As against this, Shri Mankad for the respondent has folly supported the judgment and the decree passed by the lower Appellate Court under challenge in this appeal. ( 4 ) THE lower Appellate Court has come to the conclusion that what the present respondent pleaded in his written statement by way of defence was adjustment of dues against the plaintiffs claim on the basis of the understanding between the parties. The adjustment of the dues by the present respondent was not sought to be claimed against the present appellants claim independently and de hors any kind of understanding between the two. The adjustment of the dues by the present respondent was not sought to be claimed against the present appellants claim independently and de hors any kind of understanding between the two. Before the learned lower Appellate Judge, the parties were not at variance with respect to the present respondent having done some supervision work for the present appellant. The question was whether or not the work of supervision done by the present respondent for the present appellant was against the work of preparing articles of furniture by the present appellant for the present respondent. The lower Appellate Court answered that question in favour of the present respondent. ( 5 ) SHRI Desai for the appellant has submitted that both the transactions were separate, and as such no adjustment could have been claimed by the present respondent against the claim of the present appellant in respect of an altogether different and distinct transaction. According to Shri desai for the appellant, an adjustment can be claimed in respect of the same transaction and not in respect of different and distinct transactions. Shri Desai for the appellant has urged that a set off has to be claimed or a counter-claim has to be made for adjustment of the claim of the plaintiff in respect of his transaction if the defendant has claimed against the plaintiff in respect of a different or distinct transaction, ( 6 ) IN this connection a reference deserves to be made to the ruling of this Court in the case of Kanji Lalji Kanbi and Ors. v. Harji Devraj Kanbi and Ors. , reported in (1963) IV GLR 926. In that case the plaintiffs filed one suit to recover Rs. 24,270. 29 ps. In the written statement it was contended that various sub-contracts were given by the defendants to the plaintiffs, and it was agreed between the parties that the plaintiffs should not encash certain cheque issued to them till they completed sub-contract works and that, in case the sub-contracts remained unfinished, the defendants would be entitled to get the work done at the cost of the plaintiffs and to deduct the amount of the cheque from the cost that may be incurred by the defendants. The amount claimed by the plaintiffs included Rs. 10,600. 00by way of a cheque. The amount claimed by the plaintiffs included Rs. 10,600. 00by way of a cheque. In the written statement, the defendants contended that, as a result of the plaintiffs not completing the work entrusted to them as sub-contractors various amounts, were due to them by way of damages. According to the defendants, out of the claim of Rs. 24,000 and odd, the plaintiffs would be entitled to Rs. 15,000. 00 and the claim of Rs. 9,000. 00 and odd was disputed by the defendants. It was further contended by the defendants in the written statement that on account of the work left unfinished by the plaintiffs the defendants were required to complete the work and as such defendants were entitled to damages of Rs. 15,250. 00. The defendants thus claimed that they would be in reality entitled to recover Rs. 132. 30 ps. from the plaintiffs. On this written statement the Court ordered the defendants to pay the court-fees on rs. 24,270. 29 ps. In revision this Court directed the defendants to pay the court-fees on Rs. 15,250. 00 and not on Rs. 24,270. 29 ps. This Court found that the claim of the defendants in the written statement was by way of damages in the sum of Rs. 15/250. 00 and defence for the rest of the plaintiffs case was by way of adjustment. It has been held therein :"a set-off has to be distinguished from a plea of payment or a plea of adjustment. If the plaintiff has filed a suit to recover Rs. 40,000. 00, and the defendant claims that he has already paid to the plaintiff Rs. l0,000. 00, that plea is not a plea of a set-off, but a plea of payment, and no court-fee need be paid on that plea. Similarly, if the defendant contends that out of the amount due to the plaintiff from the defendant a sum of Rs. 10. 000. 00 has been adjusted, that plea also would be a plea of adjustment and not a set-off. A set-off as mentioned in Order 8 Rule 6, Civil Procedure Code refers to a sum of money legally recoverable from the plaintiff by the defendant. 10. 000. 00 has been adjusted, that plea also would be a plea of adjustment and not a set-off. A set-off as mentioned in Order 8 Rule 6, Civil Procedure Code refers to a sum of money legally recoverable from the plaintiff by the defendant. If the plea of the defendants amounts to a plea of a payment towards the plaintiffs claim or to a plea of an adjustment towards the plaintiffs claim, that would not be a set-off and no court-fee is payable on the plea which does not amount to a set-off, the essence of a set-off is that the defendant should have a cause of action against the plaintiff and not merely a defence to the plaintiffs claim A set-off must be of such a nature that the Court would have jurisdiction to entertain it as a separate action. "i think the aforesaid ruling of this Court in the case of Kanji Laiji Kanbi and Ors. (supra) provides a complete answer to the aforesaid submission urged before me by Shri Desai for the appellant. ( 7 ) THE ruling of the Supreme Court in the case of Bhupendra narain Singha Bahadur v. Bahadur Singh and Ors. , reported in AIR 1952 sc 201 relied on by Shri Desai for the appellant in support of his submission is distinguishable on its own facts. In that case an equitable set-off against the plaintiffs claim for mesne profits was put forward by the defendant who was the wrong-doer. The Court said that the wrong-doer would not be entitled to claim any equitable set-off. This ruling of the Supreme Court in the rase of Bhupendra Narain Singha Bahadur (supra) is of no avail to the present appellant in this case. ( 8 ) THE ruling of the Supreme Court in the case of Mohinder Singh jaggi v. Data Ram Jagannath, reported in AIR 1972 SC 1048 is also distinguishable on its own facts. In that case in defence to the plaintiffs suit the defendant came forward with a counter-claim. The question before the Court was what article of the Limitation Act, 1908 would govern such counter-claim. This Puling of the Supreme Court in the case of Mohinder singh Jaggi (supra) is of no use in the present case. ( 9 ) THE ruling of the Allahabad High Court in the case of Piarey Lal and Am. v. Chief Inspector and Anr. This Puling of the Supreme Court in the case of Mohinder singh Jaggi (supra) is of no use in the present case. ( 9 ) THE ruling of the Allahabad High Court in the case of Piarey Lal and Am. v. Chief Inspector and Anr. , reported in AIR 1974 All 122 is also distinguishable on the ground that the set-off in that case was made independent of and de hors any kind of understanding between the parties. This ruling of the Allahabad High Court in the case of Piarey Lal (supra) will not apply to the facts of the present case. As aforesaid, the defendant claimed adjustment of the present appellants dues against his dues on the basis of understanding between them. ( 10 ) IN this connection a reference deserves to be made to the ruling of the Patna High Court in the case of Chandra Dutt v. Shantiram Tmary and Anr. , reported in AIR 1967 Pat 358 . In that case the plaintiffs instituted one suit against the defendant fur possession and for arrears of rent. The defendants defence was that he gave to the plaintiffs Rs. 500. 00 which was to be adjusted towards arrears of rent for a certain period and a further sum of Rs. 500. 00 later on to the adjusted towards future rent. In that context the Patna High Court ruled that what the defendant pleaded by way of defence was adjustment and not any set-off. I think this ruling of the Patna High court can be relied on by the present respondent in support of his case in this appeal. The present respondent specifically pleaded that it was agreed between the parties that towards the fees of the present respondent for doing supervision work for the present appellant, the present appellant would make articles of furniture for the present respondent. According to the present respondent, his claim for supervision work was to he adjusted against the work to be done by the present appellant for the present respondent. The adjustment was sought on the basis of the work for work theory. In view of the aforesaid factual position, in my opinion the lower Appellate Court came to the right conclusion that what the present respondent claimed in the suit by way of defence was an adjustment and not a set-off. The adjustment was sought on the basis of the work for work theory. In view of the aforesaid factual position, in my opinion the lower Appellate Court came to the right conclusion that what the present respondent claimed in the suit by way of defence was an adjustment and not a set-off. ( 11 ) IT is not necessary to burden this judgment by refining to the rulings of the Patna High Court in the case of Jayanti Lal and Anr. v. Abdul Aziz and Anr. , reported in AIR 1956 Pat 199 and in the case of raja Sri Shiva Prasad Singh v. Lalit Kishore Mitra and Ors. , reported in air 1943 Pat 152 as relied on by Shri Mankad for the respondent in support of his case. The view taken in both the aforesaid rulings of the patna High Court is in the nature of a forerunner of the view taken by that Court in its ruling in the case of Chandra Dutt (supra ). ( 12 ) ). In order to satisfy myself, I have perused the present respondents written statement at Exh. 15 and his reply at Exh. 30 to the present appellants notice at Exh. 29. I have found that the present respondent has claimed adjustment of his dues against the present appellants claim on the basis of some understanding between the parties. In that view of the matter, I am of the opinion that what the present respondent claimed by way of defence in his written statement at Exh. 15 was an adjustment and not a set-off. ( 13 ) THESE were the only contentions urged before me in support of this appeal. I have not found any merit or substance in any of them. The judgment and the decree passed by the lower Appellate Court under challenge in this appeal does not call for any interference by this Court. ( 14 ) IN the result, the appellant fails. This Second Appeal of his is dismissed however, with no order as to costs on the facts and in the circumstances of the case. .