PREPARED BY KUMAR VIKRAM ADITYA

ASSISTANT PROFESOR (GUEST FACULTY)

CPC
WRITTEN STATEMENT, SET-OFF AND COUNTER-CLAIM
 Introduction

 A statement of defences, called the “written statement” which the defendant deals with every
material fact alleged by the Plaintiff in the plaint and also sets any new facts which tells in his
favour, adding such objection as he wishes to take to the claim.
 Order 8 deals with written statement but the code doesn’t define it.
 A paragraph wise reply of the plaint, in which the defendant either denies or admits each and
every claim and allegation , drawn up and filed by the plaintiff against him in the plaint.
Provisions
 Comments

 Rule 1 provides that written Statement should be submitted within 30 days from
the date of service of summons on him, but if defendant is unable to than he
shall be allowed to file the same on such other day, as may be specified by the
Court, but which shall not be later than ninety days from the date of service of
summons. Though the time period provided in the rule is not mandatory.
 Rule 1 –A provides that it is the duty of the defendant to produce the
document with the written statement, if he bases his defence upon a
document. If the defendant doesn't control the document then he must state
that in the written statement.
Provisions
 Comments

 Rule 2 states provision of Additional Pleas in the Written Statement. Defendant can
bring all such facts into the knowledge of the court which are kept hidden by the
plaintiff, or which can make the plaint void or voidable.
 Rule 3 requires that it shall not be sufficient for a defendant in his written statement to
deny generally the grounds alleged by the plaintiff, but the defendant must deal
specifically with each allegation of fact of which he does not admit the truth, except
damages. Otherwise, the Court is entitled to draw an inference that the same has been
admitted.
 Rule 3-A has been added by the 2015 amendment which provides that if denial is
made by the defendant in suits before the Commercial Division of the High Court or the
Commercial Court, then it must adhere the Rules given in Order VIII.
Provisions
 Comments

 Rule 4 provides that denial should be clear and specific without any ambiguity. An evasive or
vague denial is no denial.
 Rule 5 states that Every allegation of fact in the plaint, if not denied specifically or by necessary
implication, shall be taken to be admitted. The grounds shall be stated by which the facts are
denied. Where the defendant has not filed a Written Statement it shall be lawful for the Court to
pronounce judgment on the basis of the facts contained in the plaint,
Provisions
 Illustrations (Read Each Illustrations
Carefully)

 (a) A bequeaths Rs. 2,000 to B and appoints C his executor and residuary legatee. B dies and D takes out administration to B's
effects, C pays Rs, 1,000 as surety for D; then D sues C for the legacy. C cannot set-off the debt of Rs. 1,000 against the legacy,
for neither C nor D fills the same character with respect to the legacy as they fill with respect to the payment of the Rs. 1,000.
 (b) A dies intestate and in debt to B. C takes out administration to A's effects and B buys part of the effects from C. In a suit for
the purchase-money by C against B, the latter cannot set-off the debt against the price, for C fills two different characters,
one as the vendor to B, in which he sues B, and the other as representative to A.
 (c) A sues B on a bill of exchange. B alleges that A has wrongfully neglected to insure B's goods and is liable to him in
compensation which he claims to set-off. The amount not being ascertained cannot be set-off.
 (d) A sues B on a bill of exchange for Rs. 500. B holds a judgment against A for Rs. 1,000. The two claims being both definite
pecuniary demands may be set-off.
 (e) A sues B for compensation on account of trespass. B hold a promissory note for Rs. 1,000 from A and claims to set-off that
amount against any sum that A may recover in the suit. B may do so, for, as soon as A recovers, both sums are definite
pecuniary demands.
 (f) A and B sue C for Rs. 1,000. C cannot set-off a debt due to him by A alone.
 (g) A sues B and C for Rs. 1,000. B cannot set-off a debt due to him alone by A.
 (h) A owes the partnership firm of B and C Rs. 1,000. B dies, leaving C surviving. A sues C for a debt for Rs. 1,500 due in his
separate character. C may set-off the debt of Rs. 1,000.
 Comments

 Rule 6 deals with the claim of set off whereas Rule 6 A to G deals with counter claim.
 Rule 6 deals with legal set off. It is a cross claim where by the defendant acknowledges the
plaintiff claim but set up another demand of his own to counter balance that of plaintiff either
in whole or in part.
 Essentials:- Suit must be for recovery of money; amount claimed must be ascertained; amount
must be legally recoverable; amount must not exceed the pecuniary limit of the court;
 For better understating, do read the illustrations carefully.
Provisions
 Comments

 Rule 6 A to G deals with counter claim. It is claim made by defendant against plaintiff in a suit filed
by the plaintiff which is independent and separate from the claim made by the plaintiff. Rule 6-A
provides that A defendant may, if he so require, can bring counter claim against the claim of the
plaintiff and may claim for set-off portion (money). Provided that such counter-claim shall not
exceed the pecuniary limits of the jurisdiction of the Court.
 Rule 6-B provides that any counter claim made must be stated specifically.
 Rule 6-C states that plaintiff can file application for separate treatment of his counter claim.
 Rule 6-D provides that any adverse order of court upon the plaintiff claim shall not effect the
counter claim.
 Rule 6-E states that plaintiff must file written statement in case counter claim has been made.
 Rule 6-F provides that the court shall give relief to party in whose favor balance of relief is required
to be sanctioned.
 Rule 6-G provides applicability of Rules of Written statement upon Rules of counter claim.
Provisions
 Comments

 Rule 7 provides that Where the defendant relies upon several

distinct grounds of set off or counter claim founded upon
separate and distinct facts, they shall be stated, as far as may
be, separately and distinctly.
 Rule 8 provides that any ground of defence which has arisen
after the institution of the Suit or the presentation of a written
statement, claiming a set off or counter claim, may be raised
by the defendant or plaintiff, as the case may be, (in
separate application, with due permission of the court).
Provisions
 Comments

 Rule 9 provides that no pleading subsequent to the written statement of a defendant

other than by way of defence to set-off or counter-claim shall be presented except by
the leave of the Court and upon such terms as the Court thinks fit. But the Court may
at any time require a written statement or additional written statement from any of the
parties and fix a time of not more than thirty days for presenting the same.
 Under Order VIII Rule 10 where any party from whom a written statement is required
under Rule 1 or Rule 9 fails to present the same within the time permitted or fixed by
the court, the court shall pronounce judgment against him or make such order in
relation to the suit as it thinks fit and on the pronouncement of such judgment a
decree shall be drawn up. This rule gives a discretion to the Court either to pronounce
the judgment against the defendant or make such order in relation to the suit as it
thinks fit.