DIFFERENCE BETWEEN SETOFF AND COUNTERCLAIM

Difference between Set-Off and Counter Claim:

Set off means a claim against the plaintiff by the defendant. It’s basically a claim between the regarded parties to file a case to recover the money. In these 2 parties are reciprocal debtors to each other. The case may be relying on mutual debts between the parties; one debt may be settled against the other. The essentials are it should be regarded for recovering money. The amount of rupees should be definite. It must be gained legally. The amount of money should be taken from the plaintiff by the defendant. In this, both have claimed for money no separate set-off is needed. Counterclaim means a claim made by the defendant in a suit against the plaintiff.

The difference between set off and counterclaim are
  1. Set off is been defined in rule 6 order 8 of CPC whereas counterclaim is been defined in 6A-6G of order 8
  2. Set off has 2 types, one is equitable set-off and other is legal set off. Counterclaim has no such classification.
  3. Set off should be made up from the same transaction whereas in counter claim nothing like that.
  4. The amount of set-off must be recognised at the date of suit whereas in counter claim at the date of the written statement.
  5. Set-off is a defence to plaintiff’s action whereas counterclaim is cross action.

Framing of issues

When in a said situation one party affirms and another denies a proposition of fact or law, then the issues get rise. If there is nothing like that no question of framing arise. The plaintiff must have issues with such material propositions in order to show his right to sue. In the same way, the defendant does it. Material propositions can be understood in 2 senses. One is the proposition of law and the proposition of fact. Those propositions must constitute his defence in such suit. In Sri Nanjudchari vs The Chairman, it is Mandatory on the part of the trial court to frame all necessary issues arising from pleadings. The fundamental functions of the court as to before framing and recording issues are reading the plaintiff and written statement, examination under rule 2 if the order of CPC and hearing the parties if their pleaders.

First hearing

The expression first hearing has not been defined in the code. The first hearing of a suit means the day on which the court goes into the pleadings of the parties in order to understand their contentions. The machinery of the court is set in motion by the presentation of a plaint, which is the first stage in the suit. The second stage is the filling of the written statement by the defendant. The third important suit is framing and settlement of issues and the day on which such issues are framed is the first hearing in the suit. In cases in which no issues need to be framed for example a small cause suit, the first hearing would be the day on which the trial starts.

In Shiraj Ahmed vs Nath, the supreme court stated the date first hearing of a suit under the code is ordinarily understood to be the date on which the court proposes to apply it’s mind to the contentions pleadings if the party to the suit and the documents flied by then for the purposes of framing the issues decided in the suit. Thus the date when for the first time, the case is called out for hearing and really gone into framing the issues to be decided in the suit. Thus the date when for the first time, the case is called out for hearing and really gone into and not the date when the cases were fixed for hearing but were not gone into.

The object is ordered 10 rule 1 provides that the court shall at the first hearing of the suit, ascertain from each party or his leader whether he admits or denies such allegations or facts as are made in the plaint or the written statement if any of the opposite party. After recording admissions and denials, the court shall direct the parties to the suit to settle the matter out of court through conciliation, arbitration, meditation or Lok Adalat. If there is no settlement, the case will be referred back to the court. Order 10 rule 2 provides for the oral examination of parties to the suit with a view to elucidating matters in controversy in the suit.

The court, thus with precision the proposition of law or fact on which the parties are at variance and on such questions issue is required to be framed. Disposal of the suit at the first hearing is ordered 15 lays down that the court may be at once pronounce the judgement in where the parties are not at issue on any question of law or fact. Where one of the defendants is not at issue with the plaintiff, the court may pronounce judgement for or against such defendant. Where summons have been for final disposal and either party fails to bring.

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