Hanuman Pershad & Sons And Anr. vs Jindal Vanaspati Udyog Pvt. Ltd.
1987 Latest Caselaw 429 Del

JUDGMENT

Jagdish Chandra, J.

(1) This order shall dispose of the dispute regarding the plea of the plaintiffs taken in their replication that the defendant is liable to pay court fee in respect of its alleged adjusted amount of Rs. 84,000.00 . Where as the contention of the plaintiffs is that this amount cannot be towards adjustment but is only by way of set off for which reason the defendant must pay court fee on this amount the defendant has asserted in the written statement and has also/contended that this amount is not by way of set off but is only by way of adjustment and the amount adjusted does not require any court fpaybleeon to be paid. The law upon the point is settled in that no court fee is payable on the plea of adjustment while court fee is payable on a plea of set off (Munshi Ram and others v. Radha Kishan (dead.) and others, S. Sathiapal v. The Pandiyan Brick Works and another, ; and Somraj v. Jethmal and others, ).

(2) The defendant purchased mustard oil on different dates from the plaintiff on credit basis vide a number of bills including Bill No. 4498 dated 25th February 1985. The defendant made payments of the price in respect of all the bills except Bill No. 4498 and also did not pay interest on late payment and also did not send the 'C' Form in respect of the purchases earlier to bill No. 4498, and the claim in suit was for the recovery of a sum of Rs 3,03,708.96 paise.

(3) The defendant has claimed adjustment of a sum of Rs. 84,000.00 in respect of the transaction not honoured by the plaintiffs on account of a huge loss suffered by the defendant, even though the defendant bad running account with the plaintiffs and a debit note for Rs. 84,000.00 in respect of the transaction was sent by the defendant to the plaintiffs and the said sum was adjusted accordingly by the defendant. It is further asserted that even though the defendant offered to settle the account of the plaintiffs but the plaintiffs themselves failed to do so. Regarding the alleged huge loss of Rs. 84.000.00 the defendant has averred in the written statement that plaintiff No. 1 agreed to supply mustard in oil furtherance to further contract after the supply of the goods vide Bill No. 4498 which the plaintiffs failed to honour because of ulterior motives inasmuch as the price of the oil had shot up. It was also stated in the written statement that the aforesaid sum of Rs. 84,000.00 stood paid or adjusted against the amount of Bill No. 4498 in respect of which debit note was duly sent to the plaintiffs. In State of Madhya Pradesh v. Raja Balbadhra Singh , it has been held as follows regarding adjustments : "When two persons have certain accounts and monies are payable by each to the other, they are both entitled to mutual adjustments of the monies provided they are really due and recoverable. The distinction between payment and adjustment is that payment is 255 made to the creditor while the adjustment is made by the debtor himself. Although it is not called 'payment' in common parlance. yet it undoubtedly partakes the character of payment. At all events, it cannot be called acclaim of set-off nor can it be said to be a counter-claim as the defendant does not seek enforcement of his claim and, therefore, court fee is not due."

(4) So, from this authority it is clearly made out that the money sought to be adjusted by the defendant should be really due and recoverable. If it is not so, the amount even though sought to be adjusted cannot be called an adjustment and so must be a claim of set-off or a counter-claim which requires court fee. The aforesaid amount of Rs 84,000.00 is alleged to be by way of a huge loss to the defendant on account of the plaintiffs not having honoured the transaction of further supply of mustard oil after the supply of the goods vide Bill No. 4498 dated 25th February 1985. Such an amount cannot be said to be really due and recoverable and has to be adjudicated upon and in this view of the matter this amount of Rs. 84,000.00 cannot be said to be an adjustment but is in fact only a claim of set-off or a counter-claim and thus requires payment of court fee by the defendant. The defendant is directed to pay the requisite court fee on this amount of Rs. 84,000.00 by 2nd November, 1987.