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Gopal Chunder Surma Vs. G. Chisholm - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in(1889)ILR16Cal711
AppellantGopal Chunder Surma
RespondentG. Chisholm
Cases ReferredBhagbat Panda v. Bamdeb Panda I.L.R.
Excerpt:
set-off - cross-demand arising out of the same transaction--civil procedure code (act xiv of 1882), section 111. - .....in this suit. 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. this has been laid down in clark v. ruthnavaloo chetti 2 mad. h.c. 296. it was there said '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.' that decision was followed not only in later cases in the madras court, but also followed in this court, in a.....
Judgment:

Tottenham and Banerjee, JJ.

1. This appeal has been preferred by the defendant in a suit brought against him by the plaintiff to recover arrears of salary. The defendant disputed the amount due. In his written statement he has set out a number of items for which he claimed credit; and the total of which, if allowed, would reduce the plaintiff's claim by Rs. 624 odd.

2. Both the Courts below decreed the plaintiff's claim in full, holding that none of the items set out by the defendant in his defence came within the scope of Section 111 of the Code of Civil Procedure and could not be claimed as a set-off. Against this decision the present appeal has been brought. As regards most of the items set out by the defendant we concur with the lower Court in thinking that they do not come within the scope of Section 111, for most of them are not ascertained 'amounts due by the plaintiff. It is true that they are all specifies amounts, but specified amounts are not necessarily ascertained debts. As regards, however, one of the items, it was not pleaded as a set-off, but it was alleged to be payment on account of salary for which the suit is brought. The plaintiff has given credit for Rs. 204, as having been paid from time to time. The defendant pleaded a further payment of Rs. 130. That payment he did not allege to have been made personally to the plaintiff, but he alleged that the plaintiff had received it from the Steamer Company whose servant the defendant was, and which was in a sense, therefore, employer of the plaintiff also, although it may be that the defendant had employed the plaintiff' without any reference to the Steamer Company. Be that as it may, if the plaintiff actually received Rs. 130 from the Steamer Company on account of monthly salary, that amount will have to be credited in the present suit. At all events the Court should have enquired into this item, and not treated it as a claim to set-off, under Section Ill of the Code. Then as regards the other items set out in the first Court's judgment as claimed by the defendant, although most of them may not, and do not, come within the scope of Section 111, still we think, independently of that section, that the defendant was entitled to bring them forward, and have an adjudication in respect of them in this suit. 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. This has been laid down in Clark v. Ruthnavaloo Chetti 2 Mad. H.C. 296. It was there said '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.' That decision was followed not only in later cases in the Madras Court, but also followed in this Court, in a case of Bhagbat Panda v. Bamdeb Panda I.L.R. 11 Cal. p. 557; and we think that the law there laid down is applicable to the present suit. The claims as made by the defendant 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. Of course there may be, as regards each item, several reasons why the defendant may fail in recovering, still those are matters which will have to be enquired into.

3. We therefore direct that the case be sent down to the Court of First Instance to be re-tried.

4. Costs will abide the result.


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