A plea of defective work in construction is not a set-off but a defence to the suit claim.

JUDGEMENT :-

N. S. RAMASWAMI, J.

This suit is for the recovery of a sum of Rs. 86,000, odd with interest at 6 per cent, per annum towards the contract executed by the plaintiff. The plaintiff is an Engineering Contractor, and he entered into an agreement with the defendant, which is a partnership firm, to construct a brick kiln. The brick kiln has been completed. But some of the bills submitted by the plaintiff to the defendants have not been paid for. Hence the present suit.

2. The defence to the suit is that the plaintiff has not constructed the brick kiln according to the specifications contained in the agreement between the parties, that there are a number of defects in the construction and that therefore the plaintiff is not entitled to the suit amount. The defendant filed an additional written statement elaborating the above plea and giving details of the various alleged defects in the brick kiln and also valuing those defects. The additional written statement sums up the position stating that the defects in the construction resulted in a loss of over Rs. 1,60,000 to the defendant's factory.

3. The case was opened and part of the evidence was recorded. At that stage, the learned counsel for the plaintiff contended that the defendant should not be allowed to plead and cross-examine the plaintiff, who was in the witness box, on the plea regarding the value of the alleged defects in the construction of the brick kiln, before paying Court-fee on the written statement. His contention is that the defendant has pleaded a set-off in the written statement and that therefore, under Section 8 of the Court-fees and Suits Valuation Act, it is bound to pay Court-fee on the same. Per contra, the contention on behalf of the defendant is that the plea in the written statement is neither a counter-claim nor a set-off but it is only a defence to the suit claim and that therefore there is no question of payment of Court-fee on the written statement.

4. The learned counsel for the plaintiff referred to a number of decisions in support of his contention that Court-fee is payable on the written statement, whether a claim in the written statement is a set-off coming under Order VIII, Rule 6, C.P.C. or whether it is an equitable set-off. The contention is that in the present case, the plea taken in the additional written statement is an equitable set-off. There is really no dispute regarding the proposition that Court-fee is payable even if the set-off pleaded is not one coming under Order VIII, Rule 6 of the C.P. Code but it is only an equitable set-off. In Sitarama v. Ramanuja, AIR 1933 Mad 203, it is pointed out that there is nothing to show that the set-off mentioned in Article I, Schedule I of the Court-fees Act 1870 (corresponding to Section 8 of the present Court-fees and Suits Valuation Act) is confined only to legal set-off coming under Order VIII, Rule 6, C.P. Code and that prima facie the expression 'set-off' used in that Article may well nigh include an equitable set-off also.

In Lakshmana Chettiar v. Ramanatha Chettiar, 68 Mad LJ 23 : (AIR 1935 Mad 115), it is again pointed out that an equitable set-off is a legally recognised one and no distinction should be drawn between that and a legal set-off and that therefore an equitable set-off pleaded in a written statement must bear the appropriate Court-fee, as there is nothing to show that the set-off mentioned in Article 1 of Schedule I of the Court-fees Act of 1870 is confined only to a legal set-off coming under Order VIII, Rule 6 of the C.P. Code. A.Z.M. Peasai Karim v. Mohd. Israil, AIR 1939 Cal 415, Girdharilal v. Surajmal, AIR 1940 Nag 177 and Ratanlal v. Madari, AIR 1950 All 237, are also on the same lines. It is also well settled that if the defendant pleads set-off, Court-fee is payable on the whole amount of the set-off claimed and not merely on the difference between the set-off and the amou

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