Singh, J. - (1.) This special appeal has been filed against the judgment of our brother Nigam, J. in Civil Misc. Appln. No. 897 of 1952 under Section 45-B of the Banking Companies Act X of 194.9.
(2.) The respondent, Agarwal Bank Ltd., is in liquidation. An application was moved by the liquidator for recovery of a sum of Rs. 2576/15/3 which amount was due to the Bank from the appellant under a pronote executed by him on the 26th August, 1948, for a sum of Rs. 2,000/carrying interest at 71/2 per cent. per annum. The appellant filed a written statement in which the execution and consideration of the pronote as well as the rate of interest were admitted. What was alleged by the appellant in reply was that he had deposited a sum of Rs. 2,000/- in fixed deposit with the Bank on 1st January, 1946, for a period of two years and when that fixed deposit matured and he wanted to take back that money the Bank instead of paying it to him placed it in fixed deposit for a further period of two years without his consent and when he insisted on taking his money, he was told that the only way he could do it was to take a loan on the security of the fixed deposit receipt by executing a pronote for the amount he wanted to withdraw. It was alleged by the appellant that the pronote was executed by him under these circumstances and he, therefore, wanted that the amount due to him under the fixed deposit receipt and also the money due to him under his savings bank account, amounting to Rs. 120/2/-, be adjusted against the claim of the Bank under the pronote. The Bank filed the fixed deposit receipt dated 5th March, 1958, being in the joint names of the appellant Ram Autar Verma and his wife Smt. Jagdamba Devi.
(3.) Nigam, J., before whom the application came up for hearing, framed only two issues in addition to the general issue regarding the relief and they were : 1. Whether the defendant is entitled to any. set off for the fixed deposit of Rs. 1,000/- in his name and the alleged balance of Rs. 120/2/- which is said to be the balance in his savings bank deposit account? 2. If so, whether he must pay any court-fee before the question of set off can be considered?;