WRITTEN STATEMENT

Meaning & Definition

The "written statement" has not been defined in the Code. In Rachappa v. Gurusidappa, the
Supreme Court categorically stated that the term "written statement" is a term of specific
connotation signifying a reply to the plaint filed by the defendant. This means that the defendant's
written defence or pleading is called the "written statement".

It can be said that written statement is the pleading of the defendant wherein he deals with every
material fact alleged by the plaintiff in his plaint and also states any new facts in his favour or take
legal objections against the claim of the plaintiff.

Order VIII, Rule 1 to 5 and 7 to 10 deal with written statement of the CPC provides for the filing of a
written statement, the particulars to be contained therein and the manner of doing so.

It should also be kept in mind that the CPC does not allow any pleading subsequent to the written
statement of the defendant (other than by way of defence to a set off or counter-claim) to be
presented. Any subsequent pleading therefore, can be represented only with the leave of the court.
Such subsequent pleading of the plaintiff is known as a written statement (replication) and that of
the defendant is called additional written statement.

Time limit for filing written statement

• Order VIII, Rule 1 provides that the defendant shall within 30 days from the date of service
of summons on him present a written statement of his defence.
• If he fails to file the written statement within the period of 30 days, he shall be allowed to
file the same on such other day, as may be specified by the court, for reasons to be recorded
in writing, but which shall not be later than 90 days from the date of service of summons.

In Salem Advocate Bar Association v. UOI, the court held that, the court may allow the defendant to
file written statement. even after expiry of period of 90 days but it can be extended only in
exceptionally hard cases. The court should not exercise such discretion in a routine.

New facts must be specially pleaded

Order VIII, Rule 2 provides that the defendant must raise by his pleading all matters which show the
suit not to be maintainable, or that the transaction is either void or voidable in point of law, and all
such grounds of defence as, if not raised, would be likely to take the opposite party by surprise, or
would raise issues of fact not arising out of the plaint, as for instance fraud, limitation, release,
payment, performance, or facts showing illegality.

The purpose is to prevent any surprises for the plaintiff and ensure that all possible defenses are laid
out early in the proceedings.
Body of Written Statement

A. Preliminary objections (Order VIII, Rule 2): Before proceeding to deal with the matters of facts
alleged in the plaint, the defendant must raise points disputing the maintainability of the suit itself
like he can say that the plaint does not disclose a cause of action and is liable to be dismissed on that
ground or that the plaintiff has concealed material facts from the court and the plaint is liable to be
dismissed on the ground of concealment of facts. These objections are objections in point of law and
do not relate to the merits of the case.

B. Admissions and denials: After raising the preliminary objections in point of law, the defendant
should take up each and every para of the plaint. Every allegation of the fact in the plaint should be
either admitted or denied by the defendant. In legal language such admission or denial is called
“traverse”. With regard to admissions and denials, there are certain rules which are as follows:

RULES AND EXCEPTIONS AS TO DENIALS

Rule 3, 4 and 5 of Order VIII are three fundamental rules as to denials or traverses by the defendant.
In Badat & Co. v. East India Trading Co., the Supreme Court has held that these three rules form an
integrated code dealing with the manner in which allegation of fact in the plaint should be traversed
and the legal consequences flowing from its non-compliance.

Denial must be Specific

Rule 3 of Order VIII provides that- It shall not be sufficient for the 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.

Denial must not be Evasive

Rule 4 of Order VIII provides that where a defendant denies an allegation of fact in the plaint, he
must not do so evasively, but answer the point of substance i.e., denial shall be of the point of
substance and shall not be vague. E.g., it would not be sufficient for the defendant to say that “he
denies that he received Rs. 1000 from the plaintiff.” Here he must state that “the defendant denies
that he received Rs 1000 or any part thereof from the plaintiff.

Specific Denial

Rule 5 of Order VIII provides that every allegation of fact in the plaint, if not denied specifically or by
necessary implication or stated to be not admitted in the pleading of the defendant, shall be taken
to be admitted except as against a person under disability.

In other words, every allegation of fact in the plaint is to be taken to be admitted unless it is denied
specifically or by necessary implication or stated to be not admitted in the defendant's pleading. This
rule of admission of non- denial, does not, however, apply to a person under a disability as for
instance a minor.
Badat & Co. v. East India Trading Co., Justice Subba Rao of the Supreme Court observed that, “These
three rules form an integrated code dealing with the manner in which allegations of fact in the
plaint should be traversed and the legal consequences flowing from its non- compliance. The
written-statement must deal specifically with each allegation of fact in the plaint and when a
defendant denies any such fact, he must not do so evasively, but answer the point of substance. If
his denial of a fact is not specific but evasive, the said fact shall be taken to be admitted. In such an
event, the admission itself being proof, no other proof is necessary.”

If the defendant has not filed a pleading at all, the court can pronounce a judgement on the basis of
the facts contained in the plaint except as against a person under a disability. However, in such
cases, the court may also, in its discretion, require any such fact to be proved.

Separate Grounds

Rule 7 of Order VIII provides that, in any suit, the defendant which relies upon several distinct
ground of defence or set off or counter claim, they are to be stated as far as possible, separately and
distinctly.

New Grounds

Rule 8 of Order VIII provides that any ground of defence which has arisen after the institution of the
suit or the presentation of the written statement claiming a set-off or counter-claim, may be raised
by the defendant or plaintiff in his written statement.

Rule 9 of Order VIII provides that no pleading subsequent to the written statement of the defendant
(other than by way of defence to a set-off) can be presented, except with the leave of the court, and
on such terms as the count deems fit. The court can, however, call upon any of the parties to file a
written statement or an additional written statement within such time (not exceeding thirty days) as
it may fix.

Consequences of Non-filing of a Written Statement

Rule 10 of Order VIII provides that when a party is required to file his written statement, and he fails
to do so within the prescribed period or within the time fixed by the court, a judgement shall be
pronounced by the court against him, and a decree is to be drawn upon such judgement.

In Balraj Taneja v. Sunil Madan, (1999) 8 SCC 396, the Supreme Court observed that even if the
written statement is not filed, the court should be cautious and ensure that the plaintiff’s claims are
substantiated by evidence before passing a judgment.

SET OFF

A set-off allows the defendant to counterbalance the plaintiff’s claim by asserting a debt owed by
the plaintiff to the defendant. Essentially, it is a defense mechanism enabling mutual debt
extinguishment to the extent of the lesser amount. For instance, if a plaintiff sues for ₹10,000, and
the defendant is owed ₹4,000 by the plaintiff, the defendant can claim a set-off of ₹4,000, reducing
potential liability to ₹6,000.
Order VIII Rule 6-

Particulars of set-off to be given in written statement— Where in a suit for the recovery of money
the defendant claims to set-off against the plaintiff's demand any ascertained sum of money legally
recoverable by him from the plaintiff, not exceeding the pecuniary limits of the jurisdiction of the
Court, and both parties fill the same character as they fill in the plaintiff's suit, the defendant may, at
the first hearing of the suit, but not afterwards unless permitted by the Court, presents a written
statement containing the particulars of the debt sought to be set-off.

Effect of set-off— The written statement shall have the same effect as a plaint in a cross-suit so as to
enable the court to pronounce a final judgment in respect both of the original claim and of the set-
off: but this shall not affect the lien, upon the amount decreed, of any pleader in respect of the costs
payable to him under the decree.

Essentials of legal set-off:

• The suit must be for the recovery of money.

• The amount claimed to be set-off must be ascertained and legally recoverable. E.g., it
must not be barred by law of limitation or by res judicata.
• The claim should not exceed the pecuniary jurisdiction of the court.
• Both parties must fill the same character as they do in the plaintiff’s suit.
• The set-off must be specifically pleaded in the written statement.

Jitendra Kumar Khan v. Peerless General Finance & Investment Co. Ltd. [(2013) 8 SCC 769]: The
Supreme Court elucidated that for a legal set-off under Order VIII Rule 6, the claim must be for an
ascertained sum, legally recoverable, and both parties should hold the same character as in the
plaintiff’s suit.

TYPES OF SET-OFF

1. Legal Set-Off
Recognized under Order VIII Rule 6 of the CPC, a legal set-off pertains to ascertained sums of
money, which are legally recoverable and within the pecuniary jurisdiction of the court. The
amount must be definite. It is not necessary that the cross demand should arise out of the same
transaction.

2. Equitable Set-Off:
Though not explicitly provided in the CPC, equitable set-off is recognized under principles of
equity, justice, and good conscience. It allows setting off unascertained sums arising from the
same transaction. The equitable set-off is allowed only when cross demand arises out of same
transaction. Equitable set off can be allowed even if it is barred by the law of limitation at the
date of suit. Principle of res judicata will also not apply in the case of equitable set-off.

Aspect Legal Set-Off Equitable Set-Off

Can be an undetermined sum of

Amount Clearly determined sum of money
money
Right to Claim Can be claimed as a right Cannot be claimed as a right

Court has the discretion to refuse

Court’s Discretion Court is obligated to consider
adjudication

Transaction Not necessary to arise from the Must arise from the same
Requirement same transaction transaction

Amount claimed must be legally Amount claimed can be time-

Legally Recoverable
recoverable barred

Court Fees Court fees are required No court fees are necessary

Whether equitable set-off applicable in India?

Order VIII, Rule 6 is restricted to a legal set-off because the amount of set-off should be for an
ascertained sum of money. Now the question arises whether an equitable set-off can be pleaded in
Indian Courts?

For e.g., if the defendant claim for set-off arises from the same transaction but it is for an
unascertained sum of money, would such set-off be allowed?

Although, it is clear that the present rule i.e., Order VIII Rule 6 restricted to a legal set-off, the
defendant would be allowed to plead such a set-off in exercise of the general rule, allowing the
defendant to plead a set-off whether legal or inequitable.

The provision of civil procedure regulates only matter of procedure and therefore it cannot take
away any right of a defendant which he has indepent of its provision.

Therefore, Rule 19(3) of Order 20 also recognizes an equitable set-off.

The leading case on this point is the division bench judgement of Madras HC in Clark v. Ratnavaloo,
1865.
 COUNTER CLAIMS

Order VIII Rule 6A to 6G contains provisions regarding counter-claims by the defendant.

Rule 6A. Counter-claim by defendant—

• A defendant may in addition to a set-off under rule 6, set up, by way of counter-claim
against the claim of the plaintiff, any right or claim in respect of a cause of action accruing to
the defendant against the plaintiff.
• The defendant may do so either before or after the filing of the suit but before the
defendant has delivered his defence or before the time limited for delivering his defence has
expired, whether such counter-claim is in the nature of a claim for damages or not.
However, such counter-claim can not exceed the pecuniary limits of the jurisdiction of the
court.
• Effect of filing counter claim: Such counter-claim shall have the same effect as a cross-suit
so as to enable the Court to pronounce a final judgment in the same suit, both on the
original claim and on the counter-claim.
• The counter-claim shall be treated as a plaint and governed by the rules applicable to
plaints.
• The plaintiff shall be at liberty to file a written statement in answer to the counter-claim of
the defendant within such period as may be fixed by the court.

Mahendra Kumar v. State of M.P, a counterclaim may be set up by a defendant against a plaintiff in
respect of cause of action accruing either before or after filing of the suit, provided such claim is not
barred by limitation.

Rule 6B. Counter-claim to be stated— Where any defendant seeks to rely upon any ground as
supporting a right of counter-claim, he shall, in his written statement, state specifically that he does
so by way of counter-claim.

Rule 6C. Exclusion of counter-claim- Where a defendant sets up a counter-claim and the plaintiff
contends that the claim thereby raised ought not to be disposed of by way of counter-claim but in an
independent suit, the plaintiff may, at any time before issues are settled in relation to the counter-
claim, apply to the Court for an order that such counter-claim may be excluded, and the Court may,
on the hearing of such application make such order as it thinks fit.

Rule 6D. Effect of discontinuance of suit— Even if the suit of the plaintiff is stayed, discontinued or
dismissed, the counter-claim may nevertheless be proceeded with the defendant’s cpunter claim.

Rule 6E. Default of plaintiff to reply to counter-claim— If the plaintiff makes default in putting in a
reply to the counter-claim made by the defendant, the Court may pronounce judgment against the
plaintiff in relation to the counter-claim made against him, or make such order in relation to the
counter-claim as it thinks fit.

Rule 6F. Relief to defendant where counter-claim succeeds— In cases where a defendant
successfully set-up a set-off or counter-claim, the court may deliver a judgement in favour of
defendant in respect of any balance found to be due to him.
Rule 6G. Rules relating to written statement to apply— The rules relating to a written statement by
a defendant shall apply to a written statement filed in answer to a counter-claim.

Difference between Set-off and Counterclaim

In Munshi Ram v. Radha Kishan, the following distinctions between a set-off and counterclaim were
stated:

1. Set-off is a statutory defence to a plaintiff’s action, whereas counterclaim is substantially a

cross action.
2. Set-off must be for an ascertained sum or it must arise out of the same transaction as
plaintiff’s claim; a counterclaim need not arise out of the same transaction.
3. The amount of set-off should be less than or equal to amount of claim. A counter-claim of
defendant is an amount which is greater than that of plaintiff’s claim. (A.Z. Mohd Farooq v.
State Govt).
4. Set-off is a ground of defence to the plaintiff’s action. In other words, it is a shield, which if
established, would afford an answer to plaintiff’s claim in toto (as a whole) or pro tanto (in
proportion); on the other hand, counterclaim is a weapon of offence which enables the
defendant to enforce the claim against the plaintiff effectually as an independent action.
5. In case of a legal set-off, the amount must be recoverable at the date of suit, while in case of
counterclaim, the amount must be recoverable on the date of written statement.

Q. What is Dilatory Pleas?

A. This form of plea aims to postpone the trial on the merits.

Dilatory pleas must be taken at the earliest possible opportunity and before the pleas on merits are
taken. The plea that the court has no jurisdiction to try the suit or the plea that defendant is minor
and he cannot be sued without the appointment of guardian or the suit is bad for misjoinder, a plea
to stay the hearing under Section 10, C.P.C. or a claim that the suit is improperly framed due to
defects in the joinder of parties or cause of action are all instances of dilatory pleas.

A plea that suit is bad for misjoinder will not be accepted. It has to be shown that the parties are
wrongly joined in the suit. Similarly, if the defendant raises the plea of non-joinder of parties, he
must specifically mention in the written- statement that which person are to be added as plaintiff or
defendant.

Special defences:

1) Limitation: Plea of limitation is a complete defence and should be raised prominently in

the written statement. A plea of limitation should be raised in the following form, “The
suit is barred by article---of the second schedule to Limitation Act, 1963.”
2) Jurisdiction: The plea of jurisdiction should be raised in the written statement and
the facts on which such plea is based should also be specifically set forth like “The
 defendant denies that he resides within the jurisdiction of this court, hence this court
has no jurisdiction to try the suit”.
3) Confession and avoidance: Plea of confession and avoidance is taken up by the
defendant when he admits a particular fact alleged by the plaintiff but at the same time
tries to avoid his liability by setting up certain facts like he was induced to enter into
contract either by coercion, undue influence or fraud.
4) Illegality
5) Estoppel
6) Res Judicata
7) Justification
8) Laches