The Judgment of the Court was as follows:—
Derbyshire, C.J:— The Plaintiff agreed to build a house for the Defendant at a certain figure and is now suing for the contract price. The Defendant says that the work was not done according to the contract and has put in this plea:
“That this Defendant is entitled to get damage from the Plaintiff on account of the loss already sustained by him and the loss to which he will be put in future on account of the defective construction, negligence and carelessness as well as the mental agony, suffering and inconvenience that this Defendant had to undergo on account of the acts and conduct of the Plaintiff but as it is not possible to assess the exact amount of such damage and compensation at this stage, this Defendant tentatively values such damages, loss and compensation at Rs. 100 and pays Court fees thereon and will pay further Court-fee on such amount as will be asseseed by this Court.”
The Defendant, on December 19th, 1938, was ordered to put his own valuation on his claim as set out in paragraph 19 of his written statement. He failed to do it and on January 16th, 1939, the learned Judge made this order:
“The prayer for set-off made in paragrah 19 of the written statement is rejected.”
Against that order this Rule was obtained.
It has been argued before us that the Defendant is not in a position to set a value on his claim. Now, it is doubtful whether the Defendant can claim damages in respect of some of his allegations. He may be able to claim them in respect of others. As regards the damages which the Defendant may be entitled to in law from the Plaintiff for any breach of contract committed by the Plaintiff, the Defendant can quantify those damages. They are a matter of estimate. He can get estimates from other builders as to the costs. Such other consequential damage he may have sustained he can estimate now. The Defendant, in my opinion, can quantify his claim for damages. The Plaintiff must value his claim as accurately as he can for the purpose of the Court Fees Act. The Defendant in setting up a cross-claim for damages in which he asked for a set-off against the Plaintiff's claim must, in my opinion, do the same as the Plaintiff: he must estimate his claim as accurately as he can for the purpose of the Court Fees Act.
I see no reason why the Defendant should be allowed to await the developments of the case before he pays his court-fees any more than the Plaintiff should. In this case it is clear on the face of the pleading that the full court-fee has not been paid. The Court was bound under sec. 8B of the Court Fees Act to record a finding to that effect. The Court appears to have adopted as best it could the procedure set out in sec. 8B(2) of the Act and made the order which is complained of. I am not sure whether the learned Judge ought not to have handed back to the Defendant the document, namely, the written statement and the claim for set-off. But apparently the Plaintiff did not press for that and the learned Judge made the order he did. I see no reason to interfere with it.
In my view this Rule must he discharged.
Nasim Ali, J.:— I agree with my Lord, the Chief Justice, that this Rule should be discharged.
The claim for set-off in the present case does not come under r. 6 of Or. 8 of the Code of Civil Procedure. But this claim seems to me to be admissible in view of the provisions of Or. 20, r. 19(3) of the Code.
The next question is whether proper court-fees have been paid on this claim of set-off. Under Art. 1, Sch. I, of the Court Fees Act ad valorem court-fee is payable on the amount of set-off claimed. The contention of the Petitioner is that he is entitled to put a tentative valuation and to pay ad velorem court-fees on that valuation. This, however, is permissible in two classes of cases, namely, in suits for accounts and mesne profits. (See sec. 11 of the Court Fees Act). Sec. 7(i) of the Court Fees Act definitely states that the Plaintiff is to pay court-fees on the amount claimed in a suit for damages. Evidently the claim for set-off in the present suit is in the nature of a claim in a cross-suit. I am, therefore, of opinion that the Defendant is bound to quantify the damages claimed by him by way of set-off and to pay ad valorem court-fees as the word “set-off” in Schedule I, Art. I of the Court Fees Act, not having been qualified in any way, must include not only a legal set-off but also an equitable set-off.
P.C