1. Appellants are the defendants in O.S. 486 of 1978 of the First Additional Sub Court, Ernakulam. Plaintiff (respondent herein) filed the suit to recover money on the strength of a chitty agreement. 1st defendant contended inter-alia that Rs. 11,000/- is due to him as the plaintiff had obtained loans from him on two occasions as evidenced by Exts. B1 and B2 and so the plaintiff is not entitled to the suit claim. Learned Sub Judge decreed the suit over-ruling the above contention.

2. The learned Sub Judge held that the 1st defendant has not paid court fees on the plea of set off and so he cannot legally sustain the claim. Contention of the 1st defendant is that amount evidenced by Exts. B1 and B2 will have to be adjusted towards the plaint claim and therefore no court fee need be paid by him. In a case where a plea could be taken as a plea of adjustment, no court fee is payable. But in a case of set off or counter claim court fee will have to be paid. S.8 of the Court Fees and Suits Valuation Act provides that a written statement pleading a set off or counter claim shall be chargeable with fee in the same manner as in a plaint.

3. Set off is a plea open to a defendant by