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SCA/4129/2010 2/ 6 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 4129 of 2010
With
SPECIAL
CIVIL APPLICATION No. 389 of 2010
For
Approval and Signature:
HONOURABLE
MR.JUSTICE RAVI R.TRIPATHI
=====================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ? YES
2
To
be referred to the Reporter or not ? YES
3
Whether
their Lordships wish to see the fair copy of the judgment ? NO
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder?NO
5
Whether
it is to be circulated to the civil judge?NO
=====================================
S
K G SECURITIES PVT LTD - Petitioner(s)
Versus
MINOR
ANERIBEN HIMANSUBHAI SHAH THRO HER GURDIAN HIMANSHU & 1 -
Respondent(s)
=====================================
Appearance
:
MR ASPI M KAPADIA for
Petitioner(s) : 1,
None for Respondent(s) : 1 -
2.
=====================================
CORAM
:
HONOURABLE
MR.JUSTICE RAVI R.TRIPATHI
Date
: 06/04/2010
ORAL
JUDGMENT
1.0 This
matter is notified at Sr. No. 8 in the First Board. The learned
Advocate for the petitioner submitted that a matter, notified at Sr.
No. 31 of the Second Board, is arising out of the same order and
therefore, the same may also be taken up together.
2.0 Rule.
Learned Advocate for respondents waives service of Rule.
3.0 Heard
learned Senior Advocate Mr. Shah with Mr. Harmish K. Shah and heard
learned Advocate Mr. Aspi M. Kapadia in Special Civil Application No.
4129 of 2010. After the matter is heard for some time, taking into
consideration the order passed below exhs. 129 and 130 in Civil Suit
No. 1452 of 2005 by the learned Judge, Court No. 9, City Civil Court,
Ahmedabad dated 3rd December 2009, wherein, Para 5 reads
as under:
5. It
appears from the pleadings that the defendant has come with the case
that he has spent Rs.40 lacs towards the repairing of the suit
premises but in the present case, the defendant has neither made any
counter claim nor paid any court fee and therefore, such an issue
cannot be decided in the present suit.
4.0 The
learned Senior Advocate relied upon a decision of the Madras High
Court in the matter of Apparswami Chettiar Vs. Sri Parvathavardhani
Sametha Ramanatheeswara, reported in AIR 1961 MADRAS 527, wherein,
the Court had a similar question for its consideration. The learned
Senior Advocate for the petitioner invited attention of the Court to
the relevant part of the judgment, which reads as under:
This
is a revision petition at the instance of the defendant in O. S. No.
297 of 1958 against an order directing payment of court-fee in regard
to a claim for improvements made in the following circumstances. The
respondent filed a suit for a declaration of its title to the suit
property, for possession, for possession and recovery of mesne
profits. The petitioner, in addition to contesting the title of the
respondent, pleaded that he had effected improvements to the property
to an extent of Rs.1500/- and before a decree for possession could be
passed, he should be compensated to the extent of that amount. The
lower Court has held that the petitioner should pay court-fee on that
amount. It is plaint that the claim of the defendant to be paid the
cost of the improvement as a condition of the decree for possession
is neither a claim for set-off nor one by way of counter claim. Mr.
Ramanujam, who appeared for the Government Pleader, sought to contend
that the claim would come within the term ‘counter claim’ in sec. 8
of the Court-fees Act…
4.1 The
learned Senior Advocate also relied upon a decision of the Honourable
Apex Court in the matter of Union of India Vs. Karam Chand and
Bros. (Coal Sales) Ltd. and Others, reported in (2004) 3 SCC 504.
The learned Senior Advocate relied upon the observations made by the
Honourable Apex Court in
Paras 15 and 18. The same are reproduced for the ready perusal:
15. “Set-off”
is defined in Black’s Law Dictionary (7th Edn., 1999) inter alia as a
debtor’s right to reduce the amount of a debtor by any sum the
creditor owes the debtor; the counterbalancing sum owed by the
creditor. The dictionary quotes Thomas W. Waterman from ‘A Treatise
on the Law of Set-Off, Recoupment, and Counter Claim’ as stating:
“Set-off
signifies the subtraction or taking away of one demand from another
opposite or cross demand, so as to distinguish the smaller demand and
reduce the greater by the amount of the less; or, if the opposite
demands are equal, to extinguish both. It was also, formerly,
sometimes called stoppage, because the amount to be set-off was
stopped or deducted from the cross-demand.”
18. What
the rule deals with is legal set-off. The claim sought to be set-off
must be for an ascertained sum of money and legally recoverable by
the claimant. What is more significant is that both the parties must
fill the same character in respect of the two claims sought to be
set-off or adjusted. Apart from the rule enacted in Rule 6 abovesaid
there exists a right to set-off, called equitable, independently of
the provisions of the Code. Such mutual debts and credits or
cross-demands, to be available for extinction by way of equitable
set-off, must have arisen out of the same transaction or ought to be
so connected in their nature and circumstances as to make it
inequitable for the Court to allow the claim before it and leave the
defendant high and dry for the present unless he files a cross-suit
of his own. When a plea in the nature of equitable set-off is raised
it is not done as of right and the discretion lies with the Court to
entertain and allow such plea or not to do so.
5.0 This
Court is of the opinion that the matter requires consideration
because, by Para 5 of the order, the learned Judge has foreclosed the
case of the defendant present petitioner. That being so, the
order is final in nature for all practical purposes.
5.1 At
this juncture, the learned Advocate for respondent no. 1 submitted
that, by admitting the matter and staying further proceedings of the
suit, will adversely affect the interest of respondent no. 1
original plaintiff. She, therefore, submitted that, she has
instructions to state that, if the Court below is directed to
consider the following issues along with other issues, that will
serve the interest of justice:
Whether
the defendant no. 2 is entitled to get reimbursed Rs.40 lakhs or any
other amount, which is claimed to have been spent by it on
completion, improvement, or repairs of the suit premises? If yes, if
any Court Fees is payable?
6.0 That
being so, the present petitions are allowed and order dated 3rd
December 2009 is modified to that extent. The Court below is
directed to consider the aforesaid issues along with other issues
framed by the Court below. Rule is made absolute to the aforesaid
extent. No order as to costs.
[
Ravi R. Tripathi, J. ]
hiren
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