BANSIDHAR RAMESHWAR DASS AND CO Vs. ASRAF ALI RAMZAN ALI

JUDGEMENT

(1.) THESE two revision applications have been filed by the defendant against two orders passed by the learned District Judge, Pali dated November 17, 1977. By the first order the learned District Judge held that the pleas raised by the defendant in paragraphs 5, 6 and 7 of the Additional Fleas of his written statement amounted to set off within the meaning of Order VIII, Rule 6, Code of Civil Procedure and the defendant should pay court fees in respect of the amounts claimed by him in the aforesaid three paragraphs. By the second order passed by the learned District Judge on the same case issue No. 14 was modified and instead of the word 'adjustment', the words 'sat off' were substituted in the issue as originally framed.

(2.) I have heard learned Counsel fir the parties and hive also looked into the pleadings of the parties. So far as the averments made in paragraphs 6 and 7 of the additional pleas of the written statement of the defendant are concerned, if is no longer in dispute between the learned Counsel that the pleas raised therein are by way of defence and not by way of set off. Para 6 relate to the rate at which the processing charges were payable and the plea taken by the defendant is that the rate claimed by the plaintiff in the suit was in excess of the rate agreed upon between the parties. This was clearly a plea by way of defence. Similarly in para 7 of the additional pleas, the defendant has merely negatived the plaintiff's claim for payment of interest and that also is obviously a plea by way of defence. There can, therefore, be no dispute that no court fee is chargeable in respect of the pleas raised by the defendant in paras 6 and 7 of the additional pleas of his written statement, as those pleas have been raised by way of defence in answer to the plaintiff's claim in the suit.

(3.) THE other part of the claim made by the defendant in para 5 of the additional pleas of his written statement relates to damages claimed by him for the alleged inferior quality of work done by the plaintiff. The claim for damages for below standard work or defective work is matter of adjustment and not set off. The defendant can rightly claim an adjustment of the amount of damages suffered by him on account of inferior quality of workmanship of the plaintiff, when a claim for the price of the work done is the subject matter of the suit. In Tata Iron and Steel Co. v. R.N. Gupta AIR 1963 Orissa it was held that in a suit for recovery of an amount for the supply of rice, the claim of the defendant for loss incured by him as a consequence of supply of below standard rice was in the nature of adjustment and not by way of set off as both the matters formed part of the same transaction of contract. Similarly in S Sethispal v. Pandiyun Brick Works : AIR1974Mad53 it was held that the claim of the defendant in respect of damages for defective work done by the plaintiff is only by way of defence and not a set off and there is no liability upon the defendant to pay court fees as a condition precedent to the defendant's right to prove the plea relating to such damages.