IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN FRIDAY, THE 27TH MARCH 2009 / 6TH CHAITHRA 1931 WP(C).No. 10090 of 2009(O) -------------------------- OS.93/2006 of PRINCIPAL SUB COURT,PARAVUR .................... PETITIONER(S): --------------- ANTONY,S/O.THOMAS, MALIYEKKAL HOUSE,ELANTHIKKARA KARA, PUTHENVELIKKARA VILLAGE,PARAVUR TALUK. BY ADV. SRI.P.K.SAJEEV SRI.RANJITH XAVIER RESPONDENT(S): --------------- FRANCIS,S/O.ARANGASSERY VAREED, VALIYAKULAM HOUSE,CHERAI KARA, PALLIPPURAM VILLAGE,KOCHI TALUK. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 27/03/2009/, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.T.SANKARAN, J. ------------------------------------ W.P.(C).No.10090 of 2009 ------------------------------------ Dated this the 27thday of March, 2009 JUDGMENT The Writ Petitioner, who is the defendant in O.S.No.93 of 2006, on the file of the court of Principal Subordinate Judge, North Paravur, challenges the order dated 28th February 2009 by which the court below held that the petitioner is liable to pay court fee on set off and the counter claim pleaded by him. 2. The respondent instituted the suit for return of the advance amount of Rs.2,50,000/- paid as per an agreement for sale executed between the parties. The plaintiff paid a sum of Rs.2,50,000/- as advance. The defendant contended that the plaintiff committed default and he was not ready and willing to perform his part of the contract. The defendant also contended that the plaintiff had removed earth from the plaint schedule property and thereby caused loss to the defendant. He limited the claim on this court to Rs.3 lakhs and claimed a set off in respect of Rs.2,50,000 and put forward a counter claim for the balance amount of Rs.50,000/-. WPC No.10090/2009 2 3. It is stated that the defendant paid court fee for the counter claim of Rs.50,000/-. But, he did not pay the court fee for the set off. 4. An objection was taken by the plaintiff that the defendant has not paid the court fee on the amount claimed as set off. The court below considered the objection. The petitioner/defendant raised a contention that a sum of Rs.2,50,000/- was adjusted towards the counter claim and therefore, there is no set off as such. The defendant contended that since it is an adjustment, no court fee is payable on Rs.2,50,000/. This contention was negatived by the court below relying on Subramoniam vs. Subramoniam and others (1977 KLT 293) and Cheriya Elias vs. Surendra Chit Fund (1989 (1) KLT 449). 5. Section 8 of the Kerala Court Fees and Suits Valuation Act provides that a written statement pleading a set off or counter claim shall be chargeable with fee in the same manner as a plaint. In Cheriya Elias vs. Surendra Chit Fund (1989(1)KLT 449), a Division Bench of this Court held thus: “Set off is a plea open to a defendant by which he could claim wiping off or reducing the plaint claim by WPC No.10090/2009 3 adjustment of the amount due to him from the plaintiff. A plea of set off is distinguishable from a plea of payment of adjustment. Set off extinguishes the debt or reduces the same. Payment of adjustment refers to a satisfaction or extinguishment of a debt effected prior to the raising of defence in the written statement. The question of set off can arise only in respect of dues which are outstanding and which have not already been adjusted. Thus, a plea of payment of adjustment is definitely and essentially a different plea and can be pressed into service only if the same was raised before the institution of the suit and not afterwards. To determine whether a plea raised in defence is a plea of set off or of payment by adjustment it has to be ascertained as to whether a separate action could be maintained by the defendant on the basis of his claim. If he could institute a separate suit for realisation of the amount due to him, it is a case of set off. If the adjustment was made prior to the filing of the suit by the plaintiff and a plea is taken to that effect, it would be a plea of adjustment by payment. In such a case no court fee would be payable on the amount as it stood adjusted prior to the institution of suit. As a plea of set off is pleaded in the written statement and not a claim for rendition of accounts or a plea of payment by adjustment, the first defendant cannot contend that he has no liability to pay court fees.” On a reading of paragraph 7(A) of the written statement filed by the petitioner, it is clear that he has put forward a case of set off in respect of Rs.2,50,000/-. The plea of adjustment is not raised in the written statement. The court below was right in holding that the petitioner is liable to pay the court fee as provided under Section 8 of the Kerala Court Fees and Suits Valuation Act. The finding arrived at by the court below is correct. There is no WPC No.10090/2009 4 jurisdictional error committed by the court. There is no illegality, irregularity or impropriety of the proceedings of the court. There is no warrant for interference under Article 227 of the Constitution of India. The Writ Petition fails and it is accordingly dismissed. However, the petitioner is granted time till 8th April 2009 to pay the necessary court fee. K.T.SANKARAN, JUDGE csl