SET-OFF
&
COUNTER-CLAIM
INTRODUCTION .
CPC,1908 is simultaneously substantive law creating rights and obligations and tells the procedure how to get them in pursuance of the LAW.Defendant is equiped with right to raise set off or couner claim in the suit brought by the plaintiff insead of filing a separate suit.
CPC.O.viii.r.6.
Ingredients of set-off
* suit must be for the recovery of money ,
* The defendant can claim set-off against the plaintiff's demand.
* Ascertained sum of money in set off.
* Legally recoverable by D from the plaintiff,
* Not to exceed the pecuniary jurisdiction of the Court,
* Both parties fill the same character as they fill in the plaintiff's suit,
* The defendant may raise set off at the first hearing of the suit,
afterwards permitted by the Court,
* Present a written statement containing the particulars of set-off.
* The written statement shall have the same effect as a plaint.
* Enable the Court to a final judgement of the original claim and of the set-off:
* The rules of written statement apply to a reply of set-off by the plaintiff .
SET OFF DIFFERS FROM COUNTER-CLAIM-
a. Both are cross-actions,
b. a set–off is also a ground of defence.
c. It affords an answer to the plaintiffs’ claim either wholly or pro tanto,
Set–off is a debt claimed by a defendant against the plaintiff balancing a debt claimed by the plaintiff against the defendant.
A counter-claim,
a..a weapon of offence and
b...enables a defendant to enforce a claim against the plaintiff as effectually as in an independent action.
NATURE-
* Both the set-off and counter-claim follow procedural nature.
* way to short out the two claims in a single suit,
* gives a right to the defendant that instead of filing an independent action, he can seek that relief in a suit filed by the plaintiff against him.
* It is substantially a cross-action by the defendant against the plaintiff and entitles the defendant full relief as in a separate action at law.
* Set off needs to be arising from the same action as filed by the plaintiff.
* The counterclaim is not confined to the claim made against the plaintiff.
* Besides the plaintiff, other interested persons may be made be impleaded.
* Set off does not permit third party debt to set off against an un-related liability.
*All forms of set-off require mutuality between claim and cross-claim.
*There is no kinds of counter-claim.
* Two Kinds of Set off.
1-Legal set off .
.An ascertained sum of money which is legally recoverable from the plaintiff, is known as a legal set-off
2-Equitable set off.
An unascertained sum of money is equitable set-off,may be claimed but not as of right.principle of equitable set-off is founded on the fundamental principles of equity, justice, and good conscience., None of the rules bar the defendant to claim equitable set-off.equitable set–off. The principle contained in Order 8 rule 6 applies not strictly but only by analogy.
The claim of the defendant’s inequitable set–off relates to transactions that can be suitably investigated in the suit itself, and then even if it is a claim for the unliquidated sum it should be taken up.It is ultimately one regarding the convenience and of the stratagem of the litigation.
CONCLUSION-
The terms of Set-off and counter-claim germinated in the CPC to make justice convenient for the judiciary and general people to save them from burden of fresh and separate suits.
