A plea of set-off or counter-claim is not a plea of payment, and court fees are payable on a counter-claim.

1. This is an application in revision against the order of the City Civil Judge Indore dated 25-6-1954. The facts briefly are as follows; Barkat Ali filed a suit against Ibrahim for the recovery of Rs. 3,275. The plaintiff alleges that on 1-10-1951 the defendant borrowed Rs. 5,000 from the plaintiff and paid Rs. 2,000 towards the principal. As Rs. 3,000 has not been paid, the suit is filed for the recovery of Rs. 3,000 principal and Rs. 275 as interest.

2. The defendant denies having borrowed Rs. 5 000 in cash. He states that the plaintiff and the defendant were carrying on some business in partnership and Rs. 5,000 were found due to the plaintiff by the defendant. Consequently the defendant put his signature on the balance of Rs. 5,000 in the Banikhata of the plaintiff. He further alleges that he paid Rs. 250 towards the interest in advance. He also states that at the time when the account was settled Rs. 463-13-6 were due to him from the plaintiff on account of some goods supplied to the plaintiff and that Rs. 64-8-0 were due to him on account of two beds and cloth belonging to the partnership.

In addition to this, the defendant alleges that after the account of the first partnership was settled, some other business was done by the parties in partnership. For the second partnership the defendant advanced Rs. 2,300. Out of the second partnership the parties made a profit of Rs. 2,221. Consequently the defendant is entitled to half the profit viz. Rs. 1,110-8-0, Thus the defendant claims the following amounts from the plaintiff.

(1)Rs.463-13-6For goods supplied.

(2) " 33-8-0 Half the price of beds.

(3) " 31-0-0 Half the price of cloth.

(4) " 250-0-0 Interest paid in advance.

(5) " 2,000-0-0 Paid towards the balance of first partnership.

(6) " 2,300-0-0 Capital contributed to the second partnership.

(7) " 1,110-8-0 Share of profit made by the second partnership.

Total Rs. 6,188-13-6

Deducting Rs. 5,000 due to the plaintiff on account of first partnership the defendant claims Rs. 1188-13-6 from the plaintiff. The defendant paid court-fees on Rs. 1188-13-6. The trial Court held that the defendant had to pay court fees on Rs. 4,188-13-6 and ordered him to pay courtfees on the balance of Rs. 3,000. Being aggrieved by this order the defendant has filed this revision.

3. Under Art. 1, Sch. 1 of the Court Fees Act, written statement pleading a set-off or counter-claim to pay 'Ad valorem' Court fees. We have therefore, to consider whether the plea of the defendant amounts to a plea of payment or set off or counter-claim. If it is a plea of payment there would be no court fees payable. But if it is a plea of set off or counterclaim, court fee has to be paid.

4. A payment refers to a satisfaction or extinguishment of a debt effected prior to the raising of the defence of payment. A counter-claim on the other hand is substantially a cross-action. Bearing these definitions in mind we have to see whether the plea of the defendant is one of payment or counterclaim. Rs. 463-13-6 is a separate debt due to the defendant by the plaintiff. This amount the defendant claims for the goods supplied to the plaintiff. This has nothing to do with the first partnership. The defendant now claims this amount to be set off against the money owed by him to the plaintiff. This therefore cannot be treated as a plea of payment.

The next items of Rs. 33-8-0 and Rs. 31 belong to the first partnership. The defendant states that two beds and some clothes belonging to the first partnership were sold after the account was settled and on account of these two items these two sums of Rs. 38-8-0 and Rs. 31 are due to him from the plaintiff. This is therefore not a plea of payment but in so far as he desires to set off, these two sums against the money due by him to the plaintiff this is a plea of bet off. The fourth item of Rs. 250 and the fifth item of Rs. 2,000 is definitely a payment towards the dues of the first partnership.

The plea regarding these two items therefore is a