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1958 Supreme(Ker) 176
Judges : P.T.RAMAN NAYAR
In Re Popular Bank Ltd. - Appellant
Versus
. - Respondent
Case No : B. C. C. No. 48, 49, 50, 52, 65, 79, 98 of 1957 in B. C. P. No. 8 of 1956
Decided On : 09/11/1958
Advocates Appeared :
Court Liquidator; For Company S. Bhoothalinga Iyer; For Defendants K. J. Malaviya; For Defendant P. H. Sankaranarayana Iyer; For Defendant K. K. Mathew; George Vadakkel; For Defendant
In the case of mutual dealings, an account has to be taken and only the balance of the account can be claimed by the party, influencing the court's decision on the liability to court fee for the affidavit filed by the debtor.
Headnote:
Court Fees - Insolvent Banking Company - Affidavit - Set Off
Fact of the Case:
The court considered whether an affidavit filed by a debtor of an insolvent banking company, claiming money due to him and requesting an account to be taken, should be liable to court fee as a written statement pleading a set off.
Finding of the Court:
The court held that such affidavits are not liable to court fee, as in the case of mutual dealings, an account has to be taken and only the balance of the account can be claimed by the party. The affidavit by a debtor claiming credit for money due to him and asking for an account to be taken is not a written statement claiming a set off, but is analogous to a written statement by a defendant in a suit on accounts claiming credit for sums not allowed by the plaintiff.
Issues: The main issue was whether the affidavit filed by the debtor should be considered as a written statement pleading a set off and be liable to court fee.
Ratio Decidendi: The court's decision was influenced by the provisions of S.529 of the Companies Act 1956, read with S.47 of the Kerala Insolvency Act, which stipulate that in the case of mutual dealings, an account has to be taken and only the balance of the account can be claimed by the party.
Final Decision: The court held that the affidavit filed by the debtor was not liable to court fee as a written statement claiming a set off.
1. The common question in these proceedings is whether an affidavit filed by a debtor of an insolvent banking company under R.15 of the Travancore-Cochin Banking Company R.1955, in reply to a list filed by the liquidator under S.45-D (2) of the Banking Companies Act 1949, wherein he claims that money is due to him from the company and that an account should be taken, is a written statement pleading a set off within the meaning of item 1 of the schedule I to the Travancore-Cochin Court-fees Act II of 1125 and liable to court fee as such. I do not think it is, even if we assume that such an affidavit is a written statement. For, under S.529 of the Companies Act 1956, read with S.47 of the Kerala Insolvency Act, in the case of mutual dealings an account has to be taken and only the balance of the account can be claimed by the one party or the other, as the case may be. It is only this balance if it is in favour of the company, that the liquidator is entitled to claim, and an affidavit by a debtor claiming credit for money due to him and asking for an account to be taken is not a written statement claiming a set off under 0.8, R.6 C. P. C, (the law having already effected a set off) but is analogous to a written statement by a defendant in a suit on accounts claiming credit for sums not allowed by the plaintiff. Now when the affidavit is filed in answer to a claim made against the debtor, can it be regarded as a petition to the court. I therefore hold that such affidavits are not liable to court fee.
