V.B. Raju, J.
1. This application is by the defendants. The opponents filed Civil Suit No. 17 of 1962 in the Court of Civil Judge Senior Division Bhuj to recover Rs. 24 270 nP. In the written statement it is contended that various sub-contracts were given by the defendants to the plaintiffs and it was agreed between the parties that the plaintiff's should not encash a certain cheque issued to them till they completed the subcontract 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 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 by 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. Therefore out the claim of Rs. 24 0 and odd although it is admitted that the plaintiffs would be entitled to Rs. 15 0 the claim of Rs. 9 0 and odd is disputed by the defendant. It is contended by the defendants in the written statement that on account of the defendants completing the work left unfinished by the plaintiffs the defendants were entitled to damages of Rs. 15 250 The defendants therefore claimed that they would be in reality entitled to recover Rs. 132-30 nP. from the plaintiffs and that nothing would be due to the plaintiffs from the defendants.
On this written statement the Court ordered the defendants to pay court-fees on Rs. 24 270 nP. Hence this revision application.
Order 8 Rule 6 C.P. Code reads as follows:
1 Where in a suit for the recovery of money the defendant claims to setoff against the plaintiffs demand any ascertained sum of money legally recoverable by him from the plaintiff not exceeding the pecuniary limits of the jurisdiction of the Court and both parties fill the same characters as they fill in the plaintiffs suit the defendant may at the first hearing of the suit but not afterwards unless permitted by the Court present a written statement containing the particulars of the debt sought to be set off.
2 The written statement shall have the same effect as a plaint in a cross suit so as to enable the Court to pronounce a final judgment in respect both of the original claim and of the set-off; but this shall not affect the lien upon the amount decreed of any pleader in respect of the costs payable to him under the decree.
3 The rules relating to a written statement by a defendant apply to a written statement in answer to a claim of set-off.
2. 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 0 and the defendant claims that he has already paid to the plaintiff Rs. 10 0 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 0 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 C.P. Code refers to a sum of money legally recoverable by the defendant from the plaintiff.
When Rs. 40 0 is due to the plaintiff and Rs. 10 0 are paid by the defendant towards that amount due to the plaintiff the defendant cannot file a separate suit in regard to Rs. 10 0 and therefore if the plea of the defendant amounts to a plea of payment towards the plaintiffs claim to a plea of or an adjustment towards the plaintiffs claim that should not be a set off and no court-fee is payable on the plea which does not amount to a set off. This position has also been explained in Jayanti Lal v. Abdul Aziz : AIR1956Pat199 where it is observed that the essence of a set-off is that the defendant should have a cause of action against the plaintiff and the set off is in the nature of a crossaction 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 actions.
3. In Punjab Electric Power Co. Ltd. v. Suraj Kishan A.I.R. 1937 Lahore 63 it was that as regards the plea of adjustment no court-fee is payable. In that case the defendants plea inter alia was that the plaintiff owed to him another amount which was adjusted with the claim of the plaintiff in the suit and it was held that no court-fee should be paid on such A plea of adjustment In the instant case however the written statement which covers several objections does not amount to a plea of adjustment or a plea of payment. It clearly amounts to a plea that the defendants are entitled to recover damages for a breach of the contract. For instance it is thus stated in the written statement:
Thus the plaintiff-firm have plunged us in the large expenses and damages by not carrying out the contract and the supplement and by walking away without completing the work and thus making breach of contract. Finding no progress in their work till 10-5-62 we had retained their amount of Rs. 10 600/on account of that. Due to the reason of plaintiff-firm committing the breach of contract and considering that the work undertaken by them is still incomplete we have to get completed the work amounting to Rs. 9 0 in words nine thousand rupees left incomplete by them from the work which we had to get completed on their account expenses and responsibility; and we are legally entitled to recover damages of Rs. 5 250 in words rupees five thousand two hundred and fifty from the plaintiff-firm for getting the work completed.
4. The next sentence also refers to the fact that the defendants are legally entitled to recover damages from the plaintiffs. It is therefore clear that the written statement claims that the defendants are entitled to recover Rs. 15 250 as damages from the plaintiffs. The plea is therefore not a plea of adjustment or payment but a plea of a set off. It would not be a set off within the meaning of Order 8 Rule 6 C.P. Code but it will be an equitable set-off as explained in : AIR1956Pat199 The defendants must therefore pay court-fee on Rs. 15 250. 5. Regarding the amount of Rs. 9 193 nP. claimed by the plaintiffs the defendants contend this amount is not claimed by the defendants and that the plaintiffs are not entitled to this amount as they have not fulfilled the contract in respect of the amount. This however denies the plaintiffs claim and does not amount to a set-off. Therefore the order of the lower Court is correct in so far as it refers to the claim of the defendants for damages. But the amount claimed by way of damages is only Rs. 15 250 The defendants should therefore pay the court-fee on Rs. 15 250 and not on Rs. 24 0 and odd as ordered by the lower Court.
The order of the lower Court is therefore modified and the defendants are ordered to pay court-fee on Rs. 15 250 No order as to costs.