W. Comer Petheram, C.J.@mdashI am of opinion that the Small Cause Court has no jurisdiction to try the set-off, inasmuch as the same amounts to Rs. 2,738-4-0, which is beyond the jurisdiction of the Court.
2. A series of cases in all the Courts in India has established that what is called an equitable right of set-off exists in this country when both the claim of the plaintiff and that of the defendant arise out of the same transaction, though the claim sought to be set off is not within the provisions of Section 11l* of the Civil Procedure Code, and this being so, this claim for damages could no doubt be set off in the present action, if it were one which the Small Cause Court had jurisdiction to try, but this, I think, it certainly had not. It is a claim to recover Rs. 2,738-4-0 as damages for the breach of a contract to deliver goods, and the defendants seek in this action to recover the whole of that sum, in the sense that they say that when they have established their right to it, they will pay an admitted debt to the plaintiff, with a part of it, and put the balance in their pockets.
3. Mr. Dunne contends that this is reducing the claim by an admitted set-off, within the meaning of Section 18, explanation 1, of the Small Cause Courts Act, but a very little consideration shows that this is not the case. In the first place, the exception applies to a claim made by the plaintiff and not to a set-off'' at all, and in the second, the claim in the present case is, as I have before shown, a claim to obtain credit for, that is to say, to recover in the suit, the entire sum of Rs. 2,738 and not the smaller one of Rs. 1,600, and it is not contended that the Small Cause Court has jurisdiction to entertain such a claim.
4. As it is not necessary for us to do so, we express no opinion on the question whether if the defendant''s claim were one which the Small Cause Court could entertain, it would have power to make a decree in favour of the defendant for any balance which might be found due to him, after deducting a sufficient sum to satisfy his debt to the plaintiff.
5. It is not necessary for us to answer the other question, but I think that, as it has been established that other rights of set-off besides those u/s 111 exist, it will be well that Rule 28 should be reconsidered by the Small Cause Court Judges.
Norris, J.
6. I am of the same opinion.
O''Kinealy, J.
7. I concur with the Chief Justice in thinking that the Small Cause Court could not try the question of set-off in this case, the value being above Rs. 2,000, and therefore beyond the jurisdiction of the Small Cause Court.
* Particulars of set-off to be given in written statement.
[Section 111 : If in a suit for the recovery of money the defendant claims to set-off against the plaintiff''s demand any ascertained sum of money legally recoverable by him from the plaintiff, and if in such claim of the defendant against the plaintiff both parties fill the same character as they fill in the plaintiff''s suit, the defendant may, at the first hearing of the suit, but not afterwards unless permitted by the Court, tender a written statement containing the particulars of the debt sought to be set-off.
Inquiry.
The Court shall thereupon inquire into the same, and if it finds that the case fulfils the requirements of the former part of this section, and that the amount claimed to be set-off does not exceed the pecuniary limits of its jurisdiction, the Court shall set-off the one debt against the other.
Effect of set-off.
Such set-off shall have the same effect as a plaint in a cross suit so as to enable the Court to pronounce a final judgment in the same suit both on the original and on the cross-claim; but it shall not affect the lien, upon the amount decreed, of any pleader in respect of the costs payable to him under the decree].
