1. This is an appeal against the order of remand made by the Additional Judge of the City Civil Court, Madras. The suit (O.S. No. 3216 of 1968) was tried by an Assistant Judge of the Court. It was for the refund of a sum of Rupees 5,000. The defendant (Madras State Small Industries Corporation Ltd.) had invited tenders for the removal of (i) zinc dross, and (ii) zinc ash at Mettur Dam. The plaintiff made a tender and a deposit in accordance with the tender notice. Later the parties broke out and the plaintiff called upon the defendant to return the deposit. The defendant, however, contended that the plaintiff had committed breach of the contract and that the defendant was entitled to forfeit the amount clause 9 of the notice inviting tenders. Thereupon the plaintiff filed the suit.
2. The learned trial Judge found that the plaintiff had not committed breach of the contract, but, on the other hand, was willing to perform the contract and that, consequently, the defendant was not entitled to forfeit the amount. The learned Judge also observed that, even assuming that the plaintiff had committed breach of the contract, the plaintiff was entitled to a refund of the deposit on the principles laid down by their Lordships of the Privy Council in Murlidhar Chatterji v. International Film Co. Ltd. .
3. The defendant filed an appeal which was heard by the learned Additional which was heard by the learned Additional Judge. Differing from the trial Judge, the learned appellate Judge held that the plaintiff had committed breach of the contract, but that, nevertheless, the defendant was not entitled to forfeit the amount of Rs. 5,000/- in view of the principles laid down by Ramaprasad Rao, J., in Meenakshinada Deikshtar v. Murugesa Nadar : AIR1970Mad391 . He therefore gave leave to the defendant to aver and prove damages. Aggrieved by the said order of remand, the plaintiff has preferred this appeal.
4. The first point raised by Thiru Vedantham Srinivasan, the learned counsel for the appellant, is that there was no concluded contract at all between the parties and that only negotiations were going on. The further submission is that, when there was no concluded contract, no question of the plaintiff having committed breach of contract would at all arise and that the defendant would not be entitled to prove any damages. Since this submission goes to the root of the matter, it is necessary to traverse in detail the correspondence between the parties; no oral evidence has been let in. By Ex. B-1 dated 6-4-1967 the defendant invited tenders for the purchase of zinc dross and zinc ash and gave instructions to the tenders. Clause 4 says:
'...................... The Managing Director of Madras State Small Industries Corporation reserves the right of rejecting all or any part of the tenders without giving any reason for the same and split up the tender as he may deem fit.'
Clause 7 says:
'Each tender must be accompanied by a deposit of Rs. 5,000/- earnest money in the form of cash or demand draft in favour of Senior Accounts officer (Cash) of this Corporation.'
Clause 9 says:
'If the tenderer fails to adhere to the terms and conditions prescribed in the tender or backs out when his tender is accepted, his deposit mentioned above will be forfeited to the Corporation in full............. If the tenderer fails to take delivery of the materials within the time-limit prescribed, the earnest money-deposit will be forfeited to the Corporation in full as a penalty. Besides, the materials will then be disposed of otherwise and loss if any in total value between the accepted tender rates and the value realised on such disposal will be made good from defaulting tenderers.'
Clause 11 says:
'The successful tenderer will be required to execute an agreement within ten days of the announcement of the acceptance of the tender for the fulfilment of the contract.'
5. By Ex. B-2 dated 24-4-1967 the plaintiff made a tender of Rs. 2,705/- per metric tonne of zinc dross and Rs. 360/- per metric tonne of zinc ash.
6. By Ex. B-3 dated 9-5-1967 the defendant sent a telegram followed by a letter of the same date, stating as follows:
'We request you to report your willingness or otherwise (to reach the undersigned on or before 5.00 p.m. on 11-5-1967) whether you are prepared to lift both zinc dross at Rs. 2,715/- per metric tonne and zinc ash at Rs. 1,225/- per metric tonne subject to other tender conditions. This is without prejudice to our rights to reject any tender offer without assigning reasons.'
7. To this the plaintiff sent a letter, Ex. B-5, dated 10-5-1967, requesting time till the 17th for confirmation, because the senior partner was not in station.
8. On 11th May, 1967, however, the plaintiff sent a telegram followed by a letter (Ex. B-6) as follows:
'With reference to you letter as above, we wish to inform you that we are hereby accepting your rates in both zinc dross and ash at Rs. 2,715/- and Rs. 1,225/- per metric tonne respectively.
So we request you to kindly send your confirmation order at the earliest.'
9. Ex. B-7 dated 13th May, 1967 was practically a reminder reiterating the same and asking for confirmation order at the earliest.
10. Ex. B-9 dated 26-5-1967 was another such reminder.
11. The defendant sent a letter, Ex. B-10, dated 31-5-1967 (27/31-5-1967). It is important. The defendant states that the rates offered by the plaintiff for the period 1-4-1967 to 31-3-1968 for zinc dross at Rupees 2,715/- and for zinc ash at Rs. 1,225/- were accepted. The defendant further stated:
'This acceptance is subject to all the conditions laid down in the instructions to the tenderer. The quantity of zinc dross and ash mentioned in the tender form is only an estimated quantity. The actual accumulation of zinc dross and zinc ash during the period 1-4-1967 to 31-3-1968 may be fluctuating and the quantity of both zinc dross and ash actually accumulated during the period of contract will have to be removed by you at the above rates, alternatively with another party more or less in equal consignments.......................
As per clause 11 of the instructions to tenders you have to execute an agreement in the form that will be sent to you separately, within ten days from the date of receipt of this order.'
12. The plaintiff sent a reply Ex. B-11 dated 5-6-1967, stating as follows:
'We have received your letter dated 31-5-1967 and we are awaiting further needful actions for above the same.'
13. It will be noted that in this letter the plaintiff does not make any complaint about the defendant having split up the offer. The plaintiff, however, wrote a further letter, Ex. B-12, dated 21-6-1967, as follows:
'In our original tender submitted to you we quoted the highest rate of Rs. 2,705/- per m. tonne for zinc dross. We were under the impression that we would be given the contract for zinc dross at our highest rate.
But subsequently you have given us a counter offer for both zinc dross at Rupees 2,715/- and zinc ash at Rs. 1,225/- per m. tonne and asked us to offer our willingness to accept the above counter offer. We have accepted your counter offer for both zinc dross and ash at the above rates under the impression that you would award the full contract to us.
From your confirmation letter quoted above, we came to know that the contract has been split up to two parties and that we will have to share the quantity of zinc dross and ash equally with the other party.
We would therefore like to mention that practically it is difficult to share with the other party and that we are not prepared to accept this split up contract, unless the contract is completely awarded to us.
We therefore request you to go through our above points and request you to be kind enough to award us with the full contract to enable us to lift the entire quantity of zinc dross and ash that will be accumulated during this year, without sharing with the other party. Even we are prepared to accept the contract for full quantity of zinc dross alone at the rate of Rs. 2,715/- per m. tonne as we are the highest tenderer for zinc dross quoted in our quotation.'
14. The defendant sent a letter dated 30-6-1967 stating that the contract was finalised by the letter dated 27/31-5-1967 (Ex. B-10) and that it was neither possible to award the contract completely to the plaintiff nor was it possible to entrust the contract for the zinc dross alone. The defendant pointed out that the amount of Rs. 5,000/- was liable to be forfeited under clause 9. The defendant therefore asked the plaintiff to show cause why the amount should not be forfeited. The plaintiff sent a reply Ex. B-13, and the defendant replied by Ex. B-14.
15. The learned trial Judge proceeded on the footing the under Ex. B-3 when the defendant asked the plaintiff whether he was willing to offer Rs. 2,715/- for zinc dross and Rs. 1,225/- for zinc ash, the defendant did not give any indication to the plaintiff that the letter would have to share the contract with another party, that it virtually meant that, if the plaintiff accepted those rates, the entire contract would be given to it, and that, since the plaintiff was willing to perform the entire contract at those rates, it was not in breach.
16. The learned appellate Judge, however, has observed that under Ex. B-3 itself the plaintiff was asked to say whether he was prepared to lift the zinc dross at Rs. 2,715/- and zinc ash at Rs. 1,225/-, subject to other tender conditions, that these words 'subject to other tender conditions' automatically included clause 4 of the original instructions to the tenders contained in Ex. B-1 dated 6-4-1967, that by cl. 4 liberty had been reserved with the Managing Director of the defendant to split up the tender, that the splitting up of the tender between the respondent and another party by the letter dated 27/31-5-1967 (Ex. B-10) was only in accordance with that reserved power, that consequently under Ex. B-10 the contract became concluded and that, since the plaintiff was not willing to share the contract with another, the plaintiff was in breach.
17. It seems to me that the reasoning of the learned appellate Judge is correct. The trial Judge has ignored the words 'subject to other tender conditions' which find place in Ex. B-3. Those words would automatically attract the latter portion of clause 4 of the original instructions in Ex. B-1 dated 6-4-1967. Under clause 4 the Managing Director of the defendant was entitled to split up the tender. It was with full knowledge of that condition that the plaintiff accepted the rates of Rs. 2,715/- and Rs. 1,225/-. Under the circumstances, it could be deemed to be an offer by the plaintiff to accept those rates in substitution of the original offer of Rs. 2,705 and Rs. 360/-, but subject to the tender conditions including clause 4. The plaintiff did not say in Ex. B-6 or in the further reminders that its acceptance of the increased rates was on the footing that the contract would be assigned to it exclusively. The plaintiff must have known that under clause 4 the Managing Director of the defendant had power to split up the tender, and when it offered the higher rates with full knowledge, the defendant was perfectly entitled to split up the tender under Ex. B-10 and the contract thereby became concluded.
18. Thiru Vendantham Srinivasan would, however, urge that the meaning of the term 'split up the tender as he may deem fit' in clause 4 is that, if a tender was offered, one for zinc dross and another for zinc ash, in the same tender, the Managing Director of the defendant could split up the tender in the sense that he need accept only either the rate offered for zinc dross or the rate of offered for zinc ash and was not bound to accept both. The first question that arises on this submission is what is the meaning of the word 'tender'; whether, in particular, when the plaintiff offered to lift zinc dross at Rs. 2,705 and zinc ash at Rs. 360/-, it could be considered as really two tenders, one for zinc dross and another for zinc ash. Clause 2 of Ex. B-1 says that tenders should be superscribed as 'Tender for purchase of zinc dross and zinc ash.' Since both zinc dross and zinc ash are clubbed together, it seems reasonable to hold that there is only a single tender, though it relates to two articles, namely, zinc dross and zinc ash. Now the relevant portion of clause 4 consists of two parts, (i) 'The Managing Director reserves the right of rejecting all or any part of the tenders without giving any reason for the same;' and (ii) 'split up the tender as he may deem fit.' Since there are two separate clause, they are intended to have different meanings. Under the first clause the Managing Director could reject any part of the tender, that is to say, he need accept only that part of the tender relating to zinc dross, or he might accept only that part relating to zinc ash. The second clause enabling him to split up cannot connote the same idea, but must connote a different idea, and that idea could only be that he could split up the tender and give to more than one party, and this power is in addition to the power of rejecting 'all or any part of the tender', and is, therefore, cumulative. In other words, exercising the power under both the clause, it is open to the Managing Director to accept only the portion of the tender relating to zinc dross, and, further, ask the tender to share the bargain with another party or many others. Suppose, for instance, there is a huge quantity of 2000 tonnes of zinc dross and all the tenders offer the same price or very nearly the same price for zinc dross. The Managing Director may well think that it will be conductive to efficiency and fairplay to allot the work to, say, three people, and that will be splitting up of the tender. I therefore hold that, when under Ex. B-10 dated 27/31-5-1967 the defendant expressed, its acceptance of the rates of Rs. 2,715/- and Rs. 1,225/- and split up the tender between the plaintiff and another party, though unnamed, there resulted a contract in law.
19. Thiru Vedantham Srinivasan, however, makes another submission on the contention that there was no concluded contract. The submission is that under Cl. 11 of Ex. B1 the successful tender was required to execute an agreement within ten days of the announcement of the acceptance of the tender for the fulfilment of the contract and that the intention of the parties was therefore that, till such an agreement was executed, there was to be no contract.
20. The principle in such cases has been stated thus in Von Hatzfeldt-Wildenburg v. Alexander, (1912) 1 Ch 284, which has been approved by the Privy Council in Shankarlal Narayandas Mundade v. New Mofussil Co. Ltd.
'It is a question of construction whether the execution of the further contract is a condition or term of the bargain or whether it is a mere expression of the desire of the parties as to the manner in which the transaction already agreed to will in fact go through. In the former case there is no enforceable contract either because the condition is unfulfilled or because the law does not recognize a contract to enter into a contract. In the latter case there is a binding contract and the reference to the mere formal document may be ignored.'
In this case Ex. B-1 required the tender to quote the rates and make a deposit, and, under clause 9, once the defendant accepted the tender, there would be a concluded contract, because all the material terms would become settled by that stage itself. Clause 11 is therefore a mere formality. The contention of Thiru Vendantham Srinivasan is clearly untenable.
21. The conclusion, that with the acceptance of the tender under Ex. B-10 dated 27/31-5-1967 a contract resulted, carries with it the consequence that the plaintiff committed breach of the contract, because it was not prepared to share the business with another. The defendant would, no doubt, be entitled to recover damages which it sustained by reason of the plaintiff's default, but even so, it must return the sum of Rs. 5,000/- which it got from the plaintiff. This is because of Section 64 of the Contract Act, which enacts:
'When a person at whose option a contract is voidable rescinds it, the other party thereto need not perform any promise therein contained in which he is promise therein contained in which he is promisor. The party rescinding a voidable contract shall, if he had received any benefit thereunder from another party to such contract, restore such benefit, so far as may be, to the person from whom it was received.'
Section 75 enacts that a person who rightfully rescinds a contract is entitled to compensation for any damages which he has sustained through the non-fulfilment of the contract. Their Lordships of the Privy Council have interpreted these sections in the well-known case of Muralidhar Chatterji v. International Film Co. . The plaintiff (appellant) there was a film distributor in Calcutta. The defendant (respondent) was a limited company in Kanpur which imported film from abroad for the purpose of renting it out to exhibitors in India and Burma. Under the contract between the parties the plaintiff was to maintain the defendant's office in Calcutta and handle its film in certain areas in conjunction with the defendant's head office at Kanpur. The contract was not comprised(?). Alleging that the defendant was in breach, the plaintiff filed a suit for Rs. 3,000/- as damages, Rs. 4,000/- paid on account and Rs. 913.13.0 expenses incurred. The defendant for its part contended that it was the plaintiff who had broken the contract. It was found by the Courts below that it was the plaintiff who had committed breach, but it was contended on his behalf that, even so, he was entitled to the refund of the sum of Rs. 4,000/-. This contention was rejected by the Courts below, but was upheld by their Lordships of the Privy Council, on the wording of Section 64 of the Contract Act. Their Lordships pointed out that, though the defendant might have sustained damages, they would have to prove the same and could only set-off those damages against the plaintiff's claim. They observed:
'On general principles they may set off such damages as they have sustained, but the Act requires that they give back whatever they received under the contract.'
They proceeded to observe:
'To give effect to the defendants' right to claim damages and to have an equitable set off they must be given leave to file a further written statement in the High Court. This pleading should contain particulars of the defendants' claim for damages for the plaintiff's wrongful refusal to carry out the contract, and should set forth that these are claimed by way of set off against the plaintiff's claim to recover Rs. 4,000/- which has been allowed upon the footing that he wrongfully repudiated the contract and that the defendants lawfully put an end to the contract by their letter of January 21, 1937.
Their Lordships think that this appeal should be allowed; that the decrees of the High Court dated January 10 and July 14, 1939, should be set aside; that it should be declared that the plaintiff is entitled to recover from the defendants Rs. 4,000/- paid under the contract of May 8, 1936, subject to the right of the defendants to set off the amount due to them as damages for the plaintiff's repudiation and breaches of the said contract.'
The defendant would, however, contend that even without proving any damages sustained by it, it would be entitled to forfeit the sum of Rs. 5,000/- under Clause 9 of the tender notice. The contention is based on the footing that under Clause 7 the sum of Rupees 5,000/- is earnest money for the due performance of the contract and that the moment the plaintiff committed breach, the defendant was entitled to forfeit the amount without any further proof of damage. The learned appellate Judge was inclined to accept this submission, but thought that, in view of the decision of Ramprasada Rao, J., in : AIR1970Mad391 , the defendant could not automatically forfeit the sum of Rs. 5,000/- and must prove the actual damages sustained by it and set if off in full or in part within the limit of Rupees 5,000/-. Ramprasada Rao, J., pointed out in the above decision that there was a well-marked distinction between a deposit or earnest money on the one hand, and an advance on the other and that, even in the case of a deposit or earnest money as distinct from an advance if could not be automatically forfeited in case of breach, but the Court had to adjudge a reasonable compensation which the defendant would be entitled to.
22. It is unnecessary to consider whether the sum of Rs. 5,000/- could really be treated as earnest money and could be automatically forfeited by the defendant as earnest money without proof of damage, because the fact remains that, though the learned appellate Judge held that it was earnest money he had further held that the defendant cannot automatically forfeit the amount, but must further prove damage, and the defendant has not preferred any appeal against the part of the judgment of the learned appellate Judge. If the defendant was aggrieved by the direction of the learned appellate Judge, it should have filed an appeal contending that without proof of damage it was entitled to forfeit the sum of Rupees 5,000/- as it contends. Since the defendant has not done so, it is precluded from raising the point. I may add that it seems to me that the sum of Rs. 5,000/- cannot automatically be forfeited as earnest money, because this conclusion, in my opinion, emerges from the decision of their Lordships of the Supreme Court in Fateh Chand v. Balkishan Das : 1SCR515 and Maula Bux v. Union of India : 1SCR928 .
23. Thiru Vedantham Srinivasan, the learned counsel for the appellant, contends that, under the circumstances of this particular case, the learned appellate Judge should not have allowed an opportunity to the defendant to file additional pleadings. He points out that, even in the notices which were issued by the plaintiff before filing the suit, he brought to the notice of the defendant the decision of the Privy Council in and pointed out that the defendant was bound to return the deposit of Rs. 5,000/-, even if the plaintiff had committed breach, and that the defendant should bring its own action to recover damages from the plaintiff. The learned counsel points out that, even after all that, the defendant in its written statement adopted the wrong procedure of forfeiting the sum of Rs. 5,000/- as earnest deposit and did not even allege that it had suffered any damage.
24. He further submits that on 6-7-1970 when the learned appellate Judge permitted the defendant to file additional pleadings raising the question of damages, the right of the defendant to recover damages was time-barred Article 55 of the Limitation Act, 1963 (Act 36 of 1963). The Article prescribes a period of three years for a suit for compensation for breach of any contract, express or implied, not therein specially provided for, and the period of limitation is three years 'when the contract is broken or (where there are successive breaches) when the breach in respect of which the suit is instituted occurs, or (where breach is continuing) when it ceases.' The learned counsel contends that on the findings of the appellate Court the plaintiff committed breach on 21-6-1967 when it sent the letter, Ex. B-12, that that was the starting point of limitation and that three years' period had expired on 6-7-1970, the date of the judgment of the appellate Court. The learned counsel contends that, under these circumstances, the appellate Judge should not have permitted the defendant to raise a plea which was time-barred.
25. On the other hand, the submission of Thiru A. N. Rajagopalan, the learned counsel for the respondent (defendant), is that there was continuing breach on the part of the plaintiff and that the defendant had a period of three years from 1-5-1968 when the accumulated zinc dross was removed by fresh contractors and the total damages payable by the plaintiff were ascertained. But the learned counsel submits that I need not go into the question of limitation, because that will have to be decided in another suit, O.S. No. 7279 of 1971, which the present defendant has filed in the City Civil Court for the recovery of a sum of Rupees 34,291.55. A copy of the plaint in that suit has been furnished to me. It is claimed therein that the present defendant sustained damages to the extent of Rs. 39,281.55, that it gave credit to the sum of Rs. 5,000/- paid by the present plaintiff as earnest money and that the suit was filed for the recovery of the balance. The plaint mentions three days as the days when cause of action arose namely 11-5-1967 when the counter offer of the present defendant was accepted by the present plaintiff, 21-6-1967 when the present plaintiff went back on the contract and 1-5-1968 when the accumulated zinc dross and ash were removed by fresh contractors and the total damages payable by the present plaintiff became ascertained and subsequently. On that basis the suit would have to be filed on 1-5-1971, but it was vacation time and the suit was filed on 10-6-1971, the reopening day. It may also be mentioned in passing that the additional written statement permitted by the appellate Judge was filed in December, 1970, in the trial Court in O.S. No. 3216 of 1968. Thiru A. N. Rajagopalan prays that I need not go into the question of limitation with reference to the legal right of the defendant to claim damages to the tune of Rs. 39,291.55--whether the starting point was 21-6-1967 or 1-5-1968, but submits that, apart from the legal right of set-off, the defendant herein had an equitable right of set-off to the extent of Rs. 5,000/-, that they could plead it virtually as a defence in O.S. No. 3216 of 1968, that for the purpose of limitation the claim of equitable set off should be considered as having been made on the date of the suit, O.S. No. 3216 of 1968, namely, 21-6-1968, and that on 21-6-1968 the claim of equitable set off was in time.
26. The short question for decision therefore is whether in law the defendant had such an equitable right of set-off to the extent of Rs. 5,000/- and whether for the purpose of limitation it was enough if it was not time-barred on 21-6-1968, the date of the plaintiff's suit. There are a number of cases which have recognized such a right of equitable set off to the extent of the plaintiff's claim and they have also pointed out that such a right could be urged so long as it was not time-barred on the date of the plaintiff's suit (21-6-1968 in this case). The two conditions for allowing a claim of equitable set off are that it must arise out of the same transaction which is the basis of the plaintiff's claim and that it would be inequitable to rive the defendant to a separate suit for the purpose. It may also be mentioned straightway that this right of equitable set off is different from what has been provided under Order VIII, Rule 6 of the Code of Civil Procedure, which says:
'Where 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, not exceeding the pecuniary limits of the jurisdiction of the Court, and 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, present a written statement containing the particulars of the debt sought to be set off.'
The claim of the defendant to set off damages cannot fall under Order VIII, Rule 6 of the Civil Procedure Code, because it is not an ascertained sum of money, and the damages will have to be quantified by the Court on proof. Further, it should be legally recoverable on the date of the written statement which may or may not be the case here. The decisions have pointed out that the Code deals with only procedure and cannot take away the right of the defendant, if it otherwise exists, to plead equitable set off. Now Order XX, Rule 19 recognizes this position, because, after enacting that, where the defendant has been allowed a set off against the claim of the plaintiff, the decree shall state what amount is due to the plaintiff and what amount is due to the defendant, and shall be for the recovery of any sum which appears to be due to either party, and that any decree passed in a suit in which a set off is claimed shall be subject to the same provisions in respect of appeal to which it would have been subject, if no set off had been claimed, it proceeds to state:
'The provisions of this rule shall apply whether the set off is admissible under Rule 6 of Order VII or otherwise.'
Thus this provision recognises that the set off may be otherwise than under Order VII, Rule 6 of the Civil Procedure Code.
27. In Stephen Clark v. Ruthnavaloo Chetti, (1865) 2 MHCR 296, the suit was filed by the plaintiffs to recover a sum of Rs. 80,000/- odd on eighteen bills of exchange drawn by Messrs. Palmer and Company. The defendant desired to set off a sum of Rs. 8,000/- odd on account of loss caused by sea damage to some goods shipped by Messrs. Palmer and Company, without properly insuring the goods in accordance with the instructions of the defendant. The learned Judges started the discussion by a reference to the English cases and pointed out that, though English cases recognized the right of set off in equity, the particular case before them was not one such case, because the claims were wholly unconnected. The learned Judges then pointed out that under the provisions of the then Civil Procedure Code (Act VIII of 1859) (more or less corresponding to Order VIII, Rule 6 of the Civil Procedure Code), the claim could not have been allowed. But they proceeded to observe as follows:
'These, however, are provisions of a Code regulating procedure only, and, whilst we think that the language used has not the effect of enlarging the right of set off, we ought at the same time to say that, according to our present opinion, the Procedure Code was not intended to take away any right of set off, whether legal or equitable, which parties would have had independently of its provisions. It seems to us that the right of set off will be found to exist not only in cases of mutual debts and credits, but also where the cross demands arise out of one and the same transaction, or are so connected in their nature and circumstances as to make it inequitable that the plaintiff should recover and the defendant be driven to a cross suit. In the present case the defendant's claim appears to us not to come within the rule by which this Court is governed, and he must be left to seek in a cross suit any damages to which he can prove himself entitled.'
28. The principle laid down in the passage quoted above was followed in a case which was decided three years later in Krishnasamy Pillai v. Municipal Commrs., (1868) 4 MHCR 120. A contract was entered into between the plaintiff Krishnasamy Pillay and the Municipal Commissioners for the Town of Madras by which the plaintiff agreed to supply to the Municipal Commissioners bullocks and drivers for scavenging purposes. Alleging that the defendants broke the contract in refusing to receive the bullocks supplied by him and in engaging other bullocks, he claimed Rs. 6,328-4-0 for the supply of bollocks and drivers and Rupees 11,812/- as damages. The defendants admitted liability for Rs. 6,328-4-0, but pleaded that it was the plaintiff who had broken the contract as a result of which the defendants had to engage other bullocks and drivers and sustained damages. The learned trial Judge found that it was the plaintiff who had broken the contract and that the defendants were entitled to recover damages by way of set off. He quantified the amount due to the defendants for damages at Rs. 10,870/- and on that footing the defendants would be entitled to a decree for Rs. 4,541-12-0 (being the excess over the damage claimed by the plaintiff). But there was one difficulty created by the fact that only a twenty-five rupee stamp had been affixed to the agreement and that was not sufficient for any larger sum than Rs. 5,000/-. Because of Section 27 of the Stamp Act (Act X of 1862), the learned Judge held that each party was precluded from recovering or setting off any larger sum than Rs. 5,000/-. Thus the plaintiff was entitled to recover only Rs. 5,000/-, and the defendants were allowed to set off Rs. 5,000/-, and the suit was dismissed. The decision was confirmed in appeal. The learned Judges held that the plaintiff had committed breach of contract and that the defendants would normally be entitled to recover Rs. 6,662/-. which means that they would get a decree for Rs. 2,333-12-0, being the excess over the damages claimed, viz., Rs. 6,328-4-0, but because of the operation of the Stamp Act, each party was entitled only to Rs. 5,000/-, and the suit was dismissed. The learned Judges discussed the right of set off, and observed:
'The remaining question is whether the last mentioned amount of damages can be set off, and we are of opinion that the decision of the learned Judge on the point is right, although we are not prepared to go quite the length that he does in resting the case on the ground of mutual credit derived from the intention of the parties as evidenced by the contract. We would rather confine ourselves to saying that the terms of the contract are quite consistent with the claim to set off, and rest our judgment on the general principle of equitable protection.' They refer with approval to the passage in (1865) 2 MHCR 296 and observe: 'Here the cross demands are connected with the same transaction and arose out of one and the same contract, and an amount appeared to be payable from the plaintiff and was capable of being immediately determined in the suit. In truth the case made in the plaint involved the very question of breach in respect of which the set off was claimed. There could hardly be a much stronger case for equitable protection for a recovery of more than the balance justly due.'
The decision in (1868) 4 MHCR 120 was followed with approval by Marriott, J. of the Bombay High Court, in a case decided in 1880, Kishorchand Champalal v. Madhowji Visram, ILR (1880) 4 Bom 407. The defendant agreed to purchase some wool from the plaintiff. The plaintiff filed the suit for recovery of the balance of the purchase money for the wool supplied. The defendant sought to set off damages sustained by him by reason of the plaintiff's failure to deliver the remainder of the bales contracted for. It was held that he could do so. Against the plaintiff's claim for Rs. 1,241/-, the defendant was allowed to set off Rs. 583/-, and a decree was given only for the balance. After quoting from (1868) 4 MHCR 120, Marriott, J., observed:
'Every word of this passage from the judgment of the Chief Justice is applicable to the present suit. The demands here are connected with the same transaction, and arise out of one and the same contract. The amount payable by the plaintiff is capable of being immediately determined. The plaintiff's case involves the very question of breach in respect of which the right of set off is claimed, and certainly no purpose could be served be rejecting the set off, except simply that of driving the defendant to file another suit.'
29. In 1885 a similar case was decided by Bench of the Allahabad High Court in Pragi Lal v. Maxwell, ILR (1885) All 284. There was a contract for the supply of wood by the plaintiff to the defendants. The plaintiff made the supply in part, but failed subsequently. He sued to recover 1,300/- odd for the supply made. There was a counter claim by the defendants for damages in consequence of the plaintiff's failure to supply wood. The defendants were allowed to set off the damages. After referring to the cases of this Court and the Bombay High Court, Old field, J. observed:
'This provision in the Code is one regulating procedure and not intended to take away any right of set off, whether legal or equitable, which parties would have had independently of its provisions, and the right of set off will be found to exist not only in cases of mutual debits and credits, but also where the cross-demands arise out of one and the same transaction, or are so connected in their nature and circumstances as to make it inequitable that the plaintiff should recover and the defendant be driven to a cross suit. And so, in the case before us, the claim springs out of the same contract which the plaintiff seeks to enforce, and can be readily determined in this suit, and it is equitable that it should be so determined.'
30. Then comes another passage which shows that limitation for the purpose of equitable set off is the date of the institution of the plaintiff's suit and not the date when the equitable set off is claimed, and reference is made to Walker v. Clements, (1850) 15 QBR 1046 = (1850) 117 ER 755, but it will be convenient to refer to this later.
31. Oldfield, J. was further inclined to grant a decree in favour of the defendants in excess of the plaintiff's claim (the plaintiff's claim was Rs. 1,367-10-9, and the defendants' claim was Rs. 1,808-5-6). But Duthoit, J., was not prepared to allow the defendants to claim in excess. He observed:
'I am not prepared to admit the validity of this claim. It is, I think, clear that, not being liquida causa, the set off could not be claimed under the provisions of Section 111 of the Code of Civil Procedure; and this being so, though I am prepared to allow that the set off may be admitted as an equitable protection to the defendants against being cast in the plaintiff's suit, I do not see how, failing the provisions of Section 111 of the Civil Procedure Code, the defendants, who have paid no Court-fees on this account, can be allowed to recover a sum of money from the plaintiff.'
32. The next case decided by a Bench of the Calcutta High Court in 1885 in Bhagbat Panda v. Bamdeb Panda, ILR (1885) Cal 557 is more interesting. The plaintiff and the defendants had taken certain lease jointly. The rent for fasli 1282 fell into arrears. The plaintiff had to pay the whole amount. He sued to recover the two-thirds share from the two defendants. The defendants, while admitting the claim, pleaded that they too had paid to the zamindar the whole of the rent for certain other years, 1282 to 1285, and were entitled to recover the one-third share from the plaintiff, and that the plaintiff was also liable to pay rent for the portion exclusively occupied by him. The Bench recognized that the claim of the defendants could not be brought within the terms of Section 111 of the then Civil Procedure Code (corresponding to Order VIII, Rule 6), but, following the decisions of this Court and the Bombay High Court, held that there was an equitable right of set off to the extent that the defendants' demand arose out of the same transaction as that of the plaintiff, but not otherwise. They observed:
'We think, therefore, that the decree, satisfied by the plaintiff, having been for arrears of rent of the same ijara to which the defendants' demand relates, the defendants' counter-claim in respect of the ijara rents paid by them to the zamindar without the assistance of the plaintiff should be taken into account in determining the suit. But we think that the claim which the defendants advanced for rent from the plaintiff as for land cultivated and held by him exclusively within the ijara should not be entertained. That we think is separate matter from the rents payable to the zamindar.'
They further observed:
'Further, the Court in which this suit was tried had no jurisdiction to entertain any claim for rent by the defendants against the plaintiff. In that part of the country in which the suit was brought, Act X of 1859 is still in force, and suits for rent are tried in Revenue and not in Civil Courts, Further, it appears on the face of the record that, as regards a portion of the claim for rent, the defendants' demand was barred by limitation at the time when their written statement in this suit was filed. It remains, therefore, to be decided whether the amount of rent paid to the zamindar by the defendants without the help of the plaintiff, and for which the plaintiff was liable jointly with themselves, amounts to such a sum as will cancel the plaintiff's claim in this suit. If the amount recoverable under this head by the defendants in equal to or in excess of the plaintiff's claim against them, the suit will properly be dismissed. If, on the other hand, this amount is less than the plaintiff's admitted claim against the defendants, he will obtained a decree for the excess........... The District Judge must now determine whether the amount claimed by the defendants under the first head alone is sufficient to satisfy the plaintiff's claim.'
33. This case is interesting, because it shows that (i) the defence of equitable set off is allowed only if it relates to the same transaction, and that (ii) it is limited to the amount of the plaintiff's claim. No doubt, it has also been stated that the demand must be in time at the time of the written statement. To that extent the decision may not be correct and is inconsistent with other decisions.
34. The above decision was followed by a Bench of the same Court in 1889, in Chisholm v. Gopal Chunder Surma, ILR (1889) Cal 711. The plaintiff was employed at the steamer ghat by the defendant to do certain duties. He claimed arrears of salary, etc. The defendant wanted to set off to the extent of Rs. 624/- (less than the plaintiff's claim) on account of property lost or not accounted for by the plaintiff. He was allowed to do so by the Bench on appeal. The Bench recognized that, though the claim did not come within the scope of Section 111 of the then Code of Civil Procedure (1882), the defendant was entitled to have an adjudication in respect of the claim. They observed:
'They were in the nature of cross-claims, and were so connected with the plaintiff's claim for salary as servant and agent of the defendant, that it would seem inequitable to compel the defendant to have recourse to a separate suit to recover them........................................................................................ The claims as made by the defendants arise for the most part out of the relation set up by the plaintiff in this suit, as a suit of master and servant, or principal and agent; and so far as these items are claimed in respect of the alleged neglect or misconduct of the plaintiff in his capacity of servant of the defendant, we think that the defendant was entitled to have the claims enquired into.'
35. The next case to be noted was decided in 1892 by a Bench of the Allahabad High Court in Niaz Gul Khan v. Durga Prasad, ILR (1893) All 9. The plaintiff's contracted to buy timber from the defendant. he committed breach. They sued for recovery of the balance of the amount which they had paid to the defendant over the value of the timber they had taken delivery of. The defendant pleaded that he had sustained damage and sought to set off. The set off was disallowed by the Courts below, as sounding in damages. The decision was reversed with the observation:
'There is a series of decisions showing that in the view of the Courts in India a right to set off may arise under circumstances under which the right would not arise in English and under circumstances under which a right to set off under Section 111 of the Code of Civil Procedure, 1882, would not arise.'
They refer to some of the decisions, and observe:
'Section 216 of the Code of Civil Procedure, as amended by Act VII of 1888, recognizes that a right of set off which would not be admissible under Section 111 of the Code might be otherwise admissible and that a defendant pleading it might be entitled to a decree on it as against the plaintiff.'
36. The defendant was willing to forego any claim in excess of the set off, and consequently the plaintiffs' suit was dismissed.
37. The above decision was followed in Nand Ram v. Ram Prasad, ILR 27 All 145. The plaintiffs were appointed commission agents by the defendants to sell their bags. The plaintiffs sued for commission, and the defendants were allowed equitable set off of the damages sustained by them on account of the negligence of the plaintiffs to carry out their instructions.
38. Equitable set off was again allowed in Kallyanjee Shamjee v. Shorrock. ILR (1910) Cal 334. The plaintiff agreed to supply 800 tons of coal which was at his depot. He supplied only 469 tons. He sued for the price therefore, Rs. 4,400/- odd. The defendants claimed a deduction for the damages they had sustained on account of non-delivery of the remaining 331 tons. They estimated the damages at Rs. 2,079/- and brought the balance into Court. It was held that, though the damages were unascertained, and the case therefore died not come with the scope of Section 111 of the then Civil Procedure Code (corresponding to Order VIII, Rule 6), still the circumstances were such as to entitle the defendants to rely on this by way of equitable set off in answer to the plaintiff's claim so far as it was available for that purpose.
39. Vyravan Chetty v. Srimath Deivasikamani Nataraja Desikar, ILR (1917) Mad 939 = AIR 1917 Mad 258 is an instructive case. The plaintiff had leased certain villages to the defendant. He sued for rent in respect of faslis 1318 and 1319. The defendant set up, by way of equitable set off, claim for damages for disturbance of his possession in faslis 1313 and 1314. The lower Court disallowed the set off on the ground that the claim thereto was barred by limitation on the date of the suit. This decision was upheld on appeal. Wallis, C. J., observed:
'It is well settled in this Court that claims for unliquidated damages may be raised by way of equitable set off, it they arise out of the same transaction as the plaintiff's cause of action, but I cannot agree that in a case like this such claim can be so set up even if it was barred at the date of the suit. It would certainly not be equitable or in accordance with equitable principle administered by the Court of Chancery to allow the provisions of the statute of limitations to be evaded in this way.'
Seshagiri Ayyar J., observed:
'Although in this country it has been held in numerous cases that the Code of Civil Procedure does not prevent the defendant from claiming an equitable set off in respect of unliquidated damages claimable in connection with the transaction on which the suit is brought, I think that on the principle that equity follows the law, the plea will be available only in respect of sums legally recoverable. Lord North states the principle very clearly in Fitton v. Com' Macclesfield, (1684) 1 Vern 287 = (1684) 23 ER 474: 'For when the Legislature had fixed the time at law, it would have been preposterous for equity (which by its own proper authority always maintained a limitation) to countenance laches beyond the period that law had been confined to by Parliament. And therefore in all cases where the legal right has been barred by Parliament, the equitable right to the same thing has been concluded by the same bar.' Lord Reddesdale in Hovendon v. Lord Anneslay, (1806) 2 Sch & Lef. 607 expresses himself with equal clearness: 'It is said that Courts of Equity are not within the Statutes of Limitations................ I think it is a mistake in point of language to say that Courts of Equity Act merely by analogy to the statutes; they act in obedience to them.'
40. The learned Judge then proceeds to point out that an exception has been recognized in some cases, for instance, between a trustee and cestui que trust, where by way of equitable set off even time-barred claims can be allowed on the basis of accountability.
41. Panuganti Narasimha Rao v. Zamindar of Tiruvur, ILR (1920) Mad 873 = AIR 1920 Mad 819 is again very useful for us. The plaintiff was the agent of the defendant. He stated that on account being taken balance would be found due to him and he filed a suit for a special balance due on accounts and damages incurred by him in a suit filed against him in respect of the money borrowed on behalf of the defendant. The suit was filed on 17-6-1912. The defendant in his written statement merely pleaded that nothing was due to the plaintiff and asked that the suit be dismissed. But at a later date (20-6-1913) he put in an additional written statement which was permitted to be filed under Order VIII, Rule 6 of the Civil Procedure Code in which he claimed that a balance was due to him on accounts and expressed his willingness to pay the requisite Court-fee if ordered to do so. The learned District Munsif, who tried the suit, held that the defendant's claim was barred, but, on appeal, the learned Subordinate Judge held that the suit being for an account a decree could be passed against the plaintiff in favour of the defendant. The plaintiffs appealed. It was not disputed before the learned Judges that the defendant's claim must be allowed to the extent of the plaintiffs' claim and the plaintiffs' suit dismissed. It was however contended that no decree could be given in favour of the defendant. This contention was upheld. It was pointed out that the claim of the defendant could not be under Order VIII, Rule 6 of the Civil Procedure Code, because it was not for an ascertained sum of money. Secondly the claim of the defendant was time-barred when he applied for leave to file an additional written statement; the agency terminated on 31st May, 1909, and the limitation for an action was three years under Article 89 of the Limitation Act of 1908. But it was recognized that he could, however, be urged only to the extent of the plaintiff's claim. Equitable set off could be allowed because it was not time-barred on the date of the plaintiff's suit. This case therefore brings out all the points stated by me earlier and it is therefore necessary to quote from it to some extent. Bakewell, J. says (page 875):
'It has been argued that under Order XX Rule 19, a set off is admissible otherwise than under Order VIII, Rule 6, and a decree may be given for the defendant. This rule appears to adopt the decisions of this Court that cross demands arising out of the same transaction may be set off though they do not fall within the strict terms of Order VIII, Rule 6, and to allow a decree to be passed for the defendant in such cases, but it does not deal with the question of limitation.
A set off was originally merely a defence to an action, and it has been held that the right to plead this defence arises when the action is brought, so that it does not become barred subsequently by the statute of limitations, (1850) 15 QB 1046.
The right has now become one of attack as well as of defence and the defendant occupies the position of a plaintiff in respect of any balance claimed by him. No decision of this Court has been cited before us that in a suit upon a contract the plaintiff is precluded from setting up the defence of the statute as well as nay other defence to the attack of the defendant.'
Lower down he says:
'In the present case, the defendant's right to sue his agent for an account was not barred on the 17th June, 1912, when the plaintiff's suit was instituted, but became barred immediately thereafter under Art. 89 of the Limitation Act, 1908. I am of opinion that when the defendant filed his written statement there was no sum due by the plaintiff to the defendant within the meaning of Order XX, Rule 19, because there was no amount them legally recoverable by the defendant from the plaintiff. I think that, since the defendant's claim was not barred at the date of the suit, he was entitled to plead that there was a sum in the plaintiff's hands which the latter was bound under his contract to apply in satisfaction of his demand; but that, since a suit could not be brought by the defendant to enforce his claim, he could not plead that there was a further sum payable to him.'
Philips, J. said:
'It is not disputed that his claim must be allowed to the extent of plaintiff's claim and the plaintiff's suit dismissed. But the further question, whether he is entitled to a decree for money has arisen. If his claim is allowed, he will be in the exceptionally fortunate position of putting forward a claim in a Court of law which he claims to have tried at no risk to himself. He has paid no courtfee on his claim and merely undertakes to pay what is necessary in case he gets a decree. Whereas, if no decree is given, he evades all liability. If the plaintiff had not brought this suit, he certainly could not have prosecuted his claim. It would, therefore, not seem right that he should be allowed to evade the statute of limitation merely because plaintiff has filed a suit against him.'
42. It will be seen that it has been held in the above case that a plea of equitable set off could be allowed to the extent of the plaintiff's claim, if it is not time-barred on the date of the plaintiff's suit. It would be appropriate to explain the juristic principle further, particularly with reference to the present case. Equitable set-off is allowed where it arises out of the same transaction which is the basis of the plaintiff's claim and where it would be inequitable to drive the defendant to a separate suit. For instance, if in this particular case, the defendant, if it merely wanted to retain the sum of Rupees 5,000/- as equitable set off to a possible claim of the plaintiff for Rs. 5,000/-, the Court cannot say that it should have filed a suit merely to be able to retain the sum of Rupees 5,000/-. The defendant might well hope that the plaintiff might not file a suit for the recovery of the sum of Rs. 5,000/-, because of the knowledge that the defendant might plead equitable set-off to the extent of Rs. 5,000/- ; nay, might even file a further suit for damages exceeding the sum of Rs. 5,000/-, of course, subject to the law of limitation. It is true that the defendant, in order to retain the sum of Rs. 5,000/-, must prove that it has suffered damages at least to the extent of Rs. 5,000/-, if the matter comes to the Court. But it does not follow from this that even to retain the sum of Rs. 5,000/- it should have taken the initiative in filing a suit to get a declaration of its right to retain the same. It could well wait. This being the nature of equitable set off, it follows that the date for judge whether the claim for equitable set off was in time would be the date of the plaintiff's suit and not a later date. If we were to hold that the plea of equitable set-off must be held to have been raised only on the date of the written statement, it might prejudice the defendant, because, the plaintiff might have brought the suit on the last date of limitation (as was the case in ILR (1920) Mad 873 = AIR 1920 Mad 819 and in another case might delay service of summons on the defendant. The claim of the defendant to recover damages in excess of the plaintiff's claim stands on a different footing and normally the claim must be held to have been filed only on the date when it was filed. But the principle is different in the case of an equitable set-off, which is limited to the plaintiff's claim, and is virtually an equitable defence to it. This is virtually what was argued by counsel in (1850) 15 QB 1046 to which reference has been made in the decision.
43. In Hari Ananda v. Mohummad Esahak, (1936) 40 CWN 751 Mitter, J. allowed an equitable set-off. The plaintiff sold some properties to the defendant. He had to pay some money which under the contract of sale the defendant had to pay. Hence he filed a suit for that amount. The defendant in his turn had to pay some money which the plaintiff had under taken to pay and hence he claimed that amount by way of set-off. The defendant's claim to set-off was made three years after the payment, and the plea could not be entertained unless it was by way of equitable set-off. Mitter, J., allowed the equitable set-off, observing:
'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.'
44. In Sundermal v. Ganesh Narayan the facts were these. The plaintiff brought the suit on 25-10-1934 claiming a sum of Rs. 75/-. The defendant pleaded that on 1-12-1931 a sum of Rs. 400/- was paid to the plaintiff, that only a sum of Rs. 257/- was due to him and that the balance of Rs. 143/- was a loan to the plaintiff. The Lower Court granted a decree for the defendant on the ground that the claim of the defendant was a set-off and was not time-barred on which the suit was instituted. But the decision was set-off and was not time-barred on which the suit was instituted. But the decision was set aside in revision on the reasoning that it was not a set-off, but a counter-claim to the extent of Rs. 143/- the excess claimed by the defendant, that limitation had started even on 1st December, 1931, and that the claim was time-barred when the written statement was filed on 8th January, 1935.
45. Herendra Nath v. Sourindra Nath : AIR1942Cal559 (cited by Thiru A. N. Rajagopalan, counsel for the defendant) is an interesting case. The plaintiffs sued for arrears of rent for faslis 1341 to 1344 (Rupees 9,000/- odd). The suit was filed on 19-4-1938. The defendants filed their written statement on 5th August, 1938, claiming that the plaintiffs were liable to pay them a sum of Rupees 8,100/- odd as rent for the faslis 1341 to 1344 in respect of some other tenures. The defendants claimed set-off for the said amount. At the time when the plaint was filed, the defendants' claim was not barred for any of the faslis 1341 to 1344, but on the date when they filed the written statement, the claim for rent for fasli 1341 was so barred. The question arose whether the defendants were entitled to set-off the rent for fasli 1341 B.S. also. It was answered in favour of defendants. It was pointed out that the claim of the defendants fell within order VIII, Rule 6, because it was an ascertained sum of money and that the question was whether it was legally recoverable. The learned Judges held that this question had to be decided on general principles and they pointed out that in its original and strict sense set-off was a defence pure and simple, which by adjustment would either wipe off or reduce the plaintiff's claim for money as made in the suit, but in its enlarged sense, and that was a statutory creation, it was a defence and a counter-claim combined, defence to the extent of wiping out the plaintiff's claim and a claim by the defendant in the suit itself for the balance. The learned Judges pointed out that to the extent it was meant to wipe out the plaintiff's claim, it was sufficient if the claim was legally recoverable on the date of the plaintiff's suit. It was further observed:
'If the other view be taken, namely, that the material date is to be the date of the written statement, it would lie in the power of the plaintiff to defeat such a plea of the defendant by simply delaying the service of the summons on the defendant.'
Reference was made to the argument of counsel in (1850) 15 QB 1046 and to some of the other cases referred to by me already, including ILR (1885) All 284 and ILR (1920) Mad 873 = AIR 1920 Mad 819.
46. It may be pointed out that in their Lordships of the Privy Council allowed the defendant to claim damages by way of equitable set-off and permitted him to file further written statement, and they further directed:
'This case should be remitted to the High Court in its original jurisdiction to assess such damages and thereafter to pass a decree for such sum as may be due on balance to either party.'
It is not clear whether by this passage their Lordships meant that a decree could be passed in excess of the plaintiff's claim or their Lordships did not mean it but merely meant that a decree could be passed specifying the amount due to each party and striking the balance within the limits of the plaintiff's claim. It is, however, certain that to the extent of the plaintiff's claim the defendant was allowed to plead equitable set-off.
47. In Krishna Pillai v. Padmanabhan, AIR 1956 Trav-Co 239 the plaintiffs sued for balance of money payable by the defendants in a chit fund transaction. The first defendant plead a counter claim arising out of the claim of certain other subscribers against the plaintiffs. The claim was time-barred on the date of the written statement. It was further held that it was not an equitable set-off at all and so it was not sufficient if it was alive at the date of the plaintiff's suit. It was pointed out that it did not arise out of the same transaction as that on which the plaintiffs' claim was based and that the claims were not interconnected to render it inequitable to drive the defendant to a separate suit.
48. In Govindji Jevat and Co. v. C. S. and W. Mills : AIR1968Ker310 a Bench of the Kerala High Court recognized the claim of set off. The suit was for damage for breach of contract. The defendants set off the price of part of the bales which had been accepted by the plaintiff. It was held that they could do so, because it was less than the plaint claim and was a pure set-off and it was within time at the time of the filing of the suit, though it was out of time at the time of the filing of the written statement. Reference was made to the decision in : AIR1942Cal559 and Sheobachan Pandey v. Madho Saran Choube : AIR1952Pat73 .
49. In view of the numerous authorities which have recognized the right of set-off, I feel that I cannot interfere with the discretion exercised by the learned appellate Judge in allowing the defendant to raise the plea of equitable set-off to the extent of the plaintiff's claim, but subject to three matters which I shall presently mention. The first is that the defendant must pay court-fee on the equitable set-off. Section 8 of the Madras Court-fees and Suits Valuation Act, 1955, is clear on the point. It says:
'A written statement pleading a set-off or counter claim shall be chargeable with fee in the same manner as a plaint.'
50. Secondly the defendant must be put on some terms. It will be remembered that even in the notices which passed between the parties before the suit, the plaintiff's counsel had drawn the attention of the defendant to the position in law and, in particular, to the decision in that even on the footing that the plaintiff had committed breach, and was liable to pay damages, the defendant must return the sum of Rs. 5,000/- and file its own claim to recover damages. Still the defendant filed its written statement claiming that the sum of Rs. 5,000/- was earnest money and that it was entitled to forfeit it without proof of damage. If the defendant had filed a correct written statement earlier, claiming equitable set-off, the plaintiff's suit would not have been delayed so much. It may be mentioned that even in the additional written statement which the defendant filed in December, 1970, as a result of the direction of the learned appellate Judge, it did not refer to any equitable set off, but stated that it was entitled to forfeit the deposit of Rs. 5,000/-, 'as the said amount was reasonably estimated as damages suffered by the defendants.' I therefore told Thiru A. N. Rajagopalan, the learned counsel for the defendant, that unless the defendant filed a proper written statement mentioning that it was claiming only an equitable set-off, it was not possible to take note of the additional written statement. Accordingly the defendant had filed a draft additional written statement stating that it is entitled to equitable set-off the damages suffered by it to the extent of Rs. 5,000/- against the amount paid by the plaintiff as earnest money. Both because the defendant did not file a correct written statement initially and even the additional written statement filed in December, 1970, is not correct and a correct written statement is going to be filed only hereafter, I think that in the interest of justice the defendant should pay a sum of Rs. 300/- to the plaintiff as a condition precedent to the filing of the written statement. The defendant is given three weeks from now to pay the amount to the plaintiff's counsel. This amount cannot be recovered from the plaintiff, even if the defendant ultimately succeeds in proving its claim for damages.
51. The third matter to which the permission to file the additional written statement is subject is this. In the additional written statement filed in December, 1970, the defendant has stated that the total damages suffered by it is Rs. 39,291.55 and that it is entitled to forfeit the deposit of Rs. 5,000/-, 'and they are ready to file a suit against the plaintiffs for the balance of the amount of loss suffered by them on account of the plaintiff's breach.' It was subsequently that the defendant filed the suit, O.S. No. 7279 of 1971, on 10-6-1971. Even in the additional written statement proposed to be filed hereafter, the defendant says:
'The defendants therefore pray that they may be allowed to set off against the plaintiff the sum of Rs. 5,000/- being the part of damages suffered by them.'
Now Thiru Vedantham Srinivasan has urged before me that the subsequent suit would be barred by the principle of Order II, Rule 2(3) of the Civil P.C., and has cited the decision in Ammenammal v. Meenakshi, (1920) 12 MLW 173 = AIR 1920 Mad 531. I am not called upon to decide that question now. But I am bound to state here that neither before Thiru Kothandaraman, the appellate Judge of the City Civil Court, nor before me has nay leave been asked for on behalf of the defendant for filing such a suit, and neither the judgment of Thiru Kothandaraman nor this judgment should be construed as in any way giving any such leave.
52. In the result, subject to the modification and conditions mentioned above, the appeal is dismissed. In particular, the additional written statement already filed in the City Civil Court in December, 1970, must be eschewed, because it does not plead an equitable set-off, but proceeds on the basis of a right to forfeit the deposit of Rs. 5,000/-. Only the draft additional written statement filed before me can be accepted. A written statement to that effect can be filed in the City Civil Court provided that, as a condition precedent, the defendant pays a sum of Rs. 300 to the plaintiff or his counsel Sri Vedantam Srinivasan, within three weeks from now, and provided further that the defendant pays the requisite court-fee on the claim of Rs. 5,000/-.
53. The parties will bear their own costs in the appeal before me. No leave.
54. Appeal dismissed.