CIVIL PROCEDURE - PLEADINGS - STATMENT OF DEFENCE ( 2) скачать в хорошем качестве

CIVIL PROCEDURE - PLEADINGS - STATMENT OF DEFENCE ( 2)

THE DEFENCE OF SET-OFF AND THE DEFENCE OF TENDER 1. The Defence of Set-off: Nature and Juridical Character Set-off is a long-established defence in civil procedure by which a defendant seeks to reduce or extinguish the plaintiff’s monetary claim by relying on a cross-debt owed by the plaintiff. Its juridical character is strictly defensive. It does not create a new cause of action, nor does it entitle the defendant to affirmative relief. For this reason, set-off is classically described as a shield, not a sword. Set-off must be distinguished from a counterclaim. A counterclaim is an independent cause of action capable of yielding judgment in the defendant’s favour. Set-off, by contrast, operates only within the limits of the plaintiff’s claim and cannot exceed it. 2. Statutory Basis under C.I. 47 Set-off is expressly recognised under Order 11 rule 17 of C.I. 47. The rule permits a defendant to rely on a monetary claim, whether ascertained or not, as a defence to the whole or part of the plaintiff’s claim, whether or not it is also added as a counterclaim. Three points are critical. First, set-off must be pleaded in the statement of defence. Second, the sum relied upon may be fixed or ascertainable. Third, although a set-off may coexist with a counterclaim, the two remain conceptually distinct. 3. Essential Requirements of a Valid Set-off For a set-off to constitute a good defence in law, three cumulative requirements must be satisfied. First, the cross-debt must exist between the same parties. A defendant cannot rely on a debt owed by a third party to defeat the plaintiff’s claim. Second, the parties must act in the same legal capacity in both claims. A personal debt cannot be set off against a claim brought in a representative capacity, and vice versa. This prevents confusion between distinct legal personalities. Third, the sum relied upon must be liquidated or reasonably ascertainable. Although Order 11 rule 17 allows unascertained sums, courts remain cautious. The claim must be capable of determination within the action without transforming the defence into an independent suit. 4. Set-off Distinguished from Counterclaim The distinction is fundamental. Set-off merely reduces or neutralises the plaintiff’s claim and cannot exceed it. If the defendant’s claim surpasses the plaintiff’s, the excess must be pursued by counterclaim. Where a defendant seeks affirmative relief, set-off is procedurally inappropriate. 5. Pleading Requirements Set-off is an affirmative defence and must be specifically pleaded. The defendant must clearly plead the existence of the cross-debt, its amount, its factual basis, and the intention to rely on it as a set-off. Failure to plead it is fatal, even if evidence is later led. 6. Rationale of Set-off Set-off prevents circuity of action, promotes procedural economy, and advances substantive justice by preventing a plaintiff from enforcing a claim while ignoring his own indebtedness. Because of its potentially harsh effect, strict compliance with its requirements is insisted upon. THE DEFENCE OF TENDER (TENDER BEFORE ACTION) 7. Scope and Rationale The defence of tender applies only to liquidated claims. It is a plea that the defendant was ready and willing to pay, payment was offered before action, the plaintiff refused it, and the amount has been paid into court. The defence reflects fairness: litigation should not proceed where payment was unreasonably rejected. 8. Statutory Requirement Order 11 rule 16 of C.I. 47 provides that tender before action is unavailable unless the amount tendered is paid into court in accordance with Order 18. Payment into court is therefore not optional; it is the condition precedent to the defence. 9. Summary Proposition Set-off and tender are technical defences requiring strict compliance. Set-off neutralises liability but never creates entitlement to judgment. Tender defeats a liquidated claim only where payment was genuinely offered and properly paid into court. Precision in pleading is therefore not formality; it is substance.