Authored By : William Comer Petheram, John Freeman Norris,O Kinealy

William Comer Petheram, C.J.

1. I am of opinion that the Small Cause Court has no jurisdictionto try the set-off, inasmuch as the same amounts to Rs. 2,738-4-0, which isbeyond the jurisdiction of the Court.

2. A series of cases in all the Courts in India hasestablished that what is called an equitable right of set-off exists in thiscountry when both the claim of the plaintiff and that of the defendant ariseout of the same transaction, though the claim sought to be set off is notwithin the provisions of Section 11l* of the Civil Procedure Code, and thisbeing so, this claim for damages could no doubt be set off in the presentaction, if it were one which the Small Cause Court had jurisdiction to try, butthis, I think, it certainly had not. It is a claim to recover Rs. 2,738-4-0 asdamages for the breach of a contract to deliver goods, and the defendants seekin this action to recover the whole of that sum, in the sense that they saythat when they have established their right to it, they will pay an admitteddebt to the plaintiff, with a part of it, and put the balance in their pockets.

3. Mr. Dunne contends that this is reducing the claim by anadmitted set-off, within the meaning of Section 18, explanation 1, of the SmallCause Courts Act, but a very little consideration shows that this is not thecase. In the first place, the exception applies to a claim made by theplaintiff and not to a set-off at all, and in the second, the claim in thepresent case is, as I have before shown, a claim to obtain credit for, that isto say, to recover in the suit, the entire sum of Rs. 2,738 and not the smallerone of Rs. 1,600, and it is not contended that the Small Cause Court hasjurisdiction to entertain such a claim.

4. As it is not necessary for us to do so, we express noopinion on the question whether if the defendants claim were one which theSmall Cause Court could entertain, it would have power to make a decree infavour of the defendant for any balance which might be found due to him, afterdeducting a sufficient sum to satisfy his debt to the plaintiff.

5. It is not necessary for us to answer the other question,but I think that, as it has been established that other rights of set-offbesides those under Section 111 exist, it will be well that Rule 28 should bereconsidered by the Small Cause Court Judges.

John Freeman Norris, J.

6. I am of the same opinion.

O Kinealy, J.

7. I concur with the Chief Justice in thinking that theSmall Cause Court could not try the question of set-off in this case, the valuebeing above Rs. 2,000, and therefore beyond the jurisdiction of the Small CauseCourt.

* Particulars of set-off to be given in written statement.

[Section 111 : If in a suit for the recovery of money thedefendant claims to set-off against the plaintiffs demand any ascertained sumof money legally recoverable by him from the plaintiff, and if in such claim ofthe defendant against the plaintiff both parties fill the same character asthey fill in the plaintiffs suit, the defendant may, at the first hearing ofthe suit, but not afterwards unless permitted by the Court, tender a writtenstatement containing the particulars of the debt sought to be set-off.

Inquiry.

The Court shall thereupon inquire into the same, and if itfinds that the case fulfils the requirements of the former part of thissection, and that the amount claimed to be set-off does not exceed thepecuniary limits of its jurisdiction, the Court shall set-off the one debtagainst the other.

Effect of set-off.

Such set-off shall have the same effect as a plaint in across suit so as to enable the Court to pronounce a final judgment in the samesuit both on the original and on the cross-claim; but it shall not affect thelien, upon the amount decreed, of any pleader in respect of the costs payableto him under the decree].

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Brojendra Nath Dasvs. The Budge-Budge Jute Mill Company, Limited (17.02.1893 - CALHC)