Decided on August 25,1955

IBRAHIM Appellant
BARKAT ALI Respondents


S.S. Shinde, J. - (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 Bahikhata 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 -6 For goods supplied. (2) " 33 -8 -0 Half the price of beds. (3) " 31 -0 -0 Halt 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. 1,188 -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 Court fees on the balance of Rs. 3,000. Being aggrieved by this order the Defendant has filed this revision. Under Article 1, Schedule 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 counter claim, Court fee has to be paid.
(3.) A payment refers to asatisfaction 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. 33 -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 set 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 plea of payment. Item No. 6 and item No. 7 are the sums due to the Defendant on account of the second partnership. But the Defendant desires to set off these two items against debt which he owes to the Plaintiff. Therefore this is also not a plea of payment. Barring the two items of Rs. 250 and Rs. 2,000, all the other items are the items of set off and not of payment. The learned Counsel for the applicant has referred me to several decisions. In - 'Punjab Electric Power Co. Ltd. v. Suraj Kishan', AIR 1937 Lah 62 (A), the facts were as follows. Plaintiff brought a suit against the Defendant or a certain amount. Defendant 'inter alia' pleaded that the Plaintiff owed to him Anr. amount which was adjusted with the claim in suit and only a little balance had remained duo to him. In these circumstances it was held by Bhide J. (as he was then) that it was an adjustment that was claimed and not a set off; hence no Court -fee was necessary. This case is not relevant. No adjustment has been pleaded with regard to any items except Nos. 4 and 5. In - 'Balechand v. Nandlal', Madh -B LJ, 1955 HCR 1442 (B), the question again was of adjustment. Consequently this case also is not relevant. - 'Muhammad Mumtaz Ali v. Muhammad Sadat Ali' : AIR 1930 Oudh 140 (C), is again a case in which the facts, are entirely different from the facts of the instant, case. In that case payments made by the Defendant were included in the assessment of profits audit was held that it was not a case of set -off. 'Paramada Prasad v. Sagarmal : AIR 1954 Pat 439 (D), is also a case the facts of which are entirely different. This decision therefore has no bearing on the present case. - 'U Ba Pe v. Sun Press Ltd., AIR 1940 Rang 300 (E), is also not relevant to the. present case. - 'Balgis Beevi Ammal v. Hathija Beevi Ammal', : AIR 1933 Mad 353(1) (F) has also no bearing on the present case. In these circumstances barring the two items Nos. 4. and 5, all other items, are not the items of payment.;

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