TMI Blog1939 (10) TMI 8X X X X Extracts X X X X X X X X Extracts X X X X ..... table set-off or a counter-claim or a plea of satisfaction or a combination of some of these defences. The learned Judge in his order does not state whether he is speaking of legal set-off or equitable set-off. When I asked learned Counsel for the applicant to be precise now at least about his client's claim he says it is a legal set-off. So the position must be examined primarily from that standpoint. 2. The facts pleaded in defence fall under two heads. Defendant says that after the execution of the promissory note plaintiff engaged in some wagering contracts in Bombay in which he lost nearly ₹ 60,000. At his request defendant accompanied him to Bombay and promised to help him out of his difficulties. This defendant did by ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it arose out of gambling transactions, and secondly that the parties did not fill the same character. Defendant says that in these transactions he acted as plaintiff's servant only, and that money is recoverable on an agreement which is merely collateral to a wagering contract. Although I doubt if this is the true position the pleadings are not clear on the point. Plaintiff says that defendant's position was that of a benamidar or partner and not that of a servant. Further pleadings or evidence would be necessary to clear this up. Similarly, I doubt whether it is made out on the pleadings that the parties held different characters from those they hold in this suit. The characters of debtor and creditor are the same whether the cred ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to pay this fee if called upon to do so. There is authority in Sitharama v. Ramanuja AIR 1933 Mad 203 for saying that court-fees should be paid also on an equitable set-off, and this was followed in the Division Bench case in Lakshmanan Chettiar v. Ramanathan Chettiar (1935) 22 AIR Mad 115. For an equitable set-off the cross-demands must arise out of the same transaction, and this in the present case would depend on proof of the agreement to link up these two transaction with the pronote. The applicant, as has been said, now claims a legal, not an equitable, set-off, but assuming he did claim the latter or that the claim is really of an equitable nature then it cannot be claimed as a matter of right, and the Court has discretion to say, as ..... X X X X Extracts X X X X X X X X Extracts X X X X
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