LESSON – 3

1. WRITTEN STATEMENT

A. THEORY

The next stage after the filing of the plaint in civil litigation is
the filing of a written statement by the defendant. It is with a purpose
to ascertain as to what are the points which the plaintiff alleges and
the defendant denies. Issues are framed on the basis of the written
statement.

The written statement must be drafted with utmost care,

because the success of the defendant depends very much upon the
written statement. It may be presented before the first hearing or
within such time the Court may permit.

DEFENCES OF THE DEFENDANT

The defences of the defendant are classified into the following

divisions:

1. ADMISSIONS

Each and every allegation of the plaint should be taken up and

drafted. Every fact alleged in the plaint should be singled out and
admitted or denied by the defendant specifically.

If the defendant wants to add affirmative statement, he has to

allege the additional facts along with the admissions or denials.

The denials must be specific, bold and clear and not be evasive.
Every allegation, if not specially denied, shall be taken to be admitted.

Matters of the law and inference from law, if pleaded in the

plaint, need not be admitted. But if necessary, the defendant can
question the points of jurisdiction of the suit and valuation of the suit.
 2. DILATORY PLEAS

These are the pleas which involve time and which tend to
delay the purpose of justice. Such pleas must be taken up at the
earliest opportunity, as ‘delay defeats justice’.

For eg., Plea that the defendant is a minor and cannot be sued
without a guardian, or a plea that the suit is bad for misjoinder or
non joinder of the causes of action or parties.

3. OBJECTIONS IN POINT OF LAW

They are objections in point of law and not merely on a

technical defect. If the defendant raises the plea that the suit is barred
by limitation or that the plaint contains no cause of action, they are
objections in point of law. Such objections in points of law are decided
at the time of trial.

4. SPECIAL DEFENCES

Instead of denying a fact of contract and agreement, if a

defendant admits the same and alleges that he was forced to make it
by coercion, fraud or misrepresentation, it is called Special Defence.

The burden of proving the acts of special defences lie on the

defendant. The defendant should prove that his consent was not free
and hence the contract became voidable. This is known as special
defence or the plea of confession and avoidance.

If the plea is not raised by the defendant in the written

statement, then he will not be allowed to plead it at the time of trial of
the suit.

5. SET OFF

Set off is a request that the debt to be found due to the plaintiff
shall be extinguished or requests, protests by being set off against the
debt due to the defendant. It is a ‘reciprocal acquittal of debts
between two persons both the plaintiff and the defendant’

Set off reduces the greater amount by the lesser amount or if the
opposite demands are equal, it extinguishes both.

It is the doctrine of law which allows the defendant to put his

claim under certain circumstances against the plaintiff before the
Court. It is a reciprocal acquittal of debts and a cross claim for money
and there is necessity of filing a fresh suit by him.

E.g.: For A sues B on a Bill of Exchange for

Rs. 5000/- B holds a judgement against A for Rs. 10,000/-. The two
claims being definite, pecuniary demands may be set off.

CONDITIONS FOR CLAIMING SET OFF:

1. The suit must be for recovery of money. E.g.: Suit for accounts.

2. Claim must be for an ascertained sum of money. It should not be

unliquidated damages.

3. It should not be barred by limitation. It should be legally

recoverable.

4. Both the parties must have the same character.

5. Both sum must not exceed the pecuniary limits of the

jurisdiction of the Court in which the suit is brought.

6. An advalorem (proportionate) Court fee is to be paid on the

amount claimed as set off.

7. A separate debt cannot be set off against a joint and several debt.
 KINDS OF SETS OFF:

Set off is two kinds.

a) Equitable set off b) Legal set off

A) EQUITABLE SET OFF:

In certain circumstances, set off is allowed even in respect of an

uncertain sum, where the cross demands arise out of the same
transaction, or under circumstances that they can be looked upon as
part of one transaction.

The right of equitable set off does not exist when the cross
demand relates to a different transaction.

A claim to set off can be created by agreement, but only to the

extent covered by its terms.

B) LEGAL SET OFF

Legal set off means the extinction of debts between two persons
who are debtors to each other for ascertained sum of money.

Here, the set off can be claimed, as a matter of right, in the

Court and the Court is bound to decide the plea when raised by either
defendant or plaintiff. However, there need not be cross demands in
the same transaction.

Further, the limitation period for set off must not be barred.
Necessary court fee must also be paid.

DIFFERENCE BETWEEN LEGAL AND

EQUITABLE SET OFF

LEGAL SET OFF

1. Legal set off is for an unascertained sum of money.

2. Cross demands may or may not arise from the same transaction.

3. The Court is bound to entertain and adjudicate upon it.

4. The amount claimed as set off must be legally recoverable and not
barred by limitation on the date of suit.

5. It is claimed as of right.

6. The whole claim must be admissible.

7. If the defendant’s claim is barred on the date of written statement

though not barred on the date of the suit, the whole claim is
allowed and decree for the balance granted to the defendant.

8. It requires Court fees.

EQUITABLE SET OFF

1. It is for ascertained as well as for unascertained sum of money.

2. Cross demands must arise out of the same transaction.

3. The Court is not obliged to adjudicate upon it and it is wholly

discretionary.

4. It is allowed even if it is not legally recoverable, i.e., even if it is

barred by the law of limitation.

5. It cannot be claimed as of right.

6. If the claim is not barred at the time of filing the suit, then the
defendant can claim the equitable set off.

7. In this type of set off, the defendant will be given an equitable set
off to the extent of the plaintiff’s claim and the defendant will not
be granted decree for balance due to him,
8. It does not require any Court fee.

COUNTER CLAIM

If an action has been brought in respect of a breach of contract,

the defendant may set off or set up by way of counterclaim against the
plaintiff’s claim, any right or claim and such set off or counter claim
has the same effect as a cross action so as to enable the Court to
pronounce a final judgment in the same action both on the original
and on the cross claim.

Counter claim is really a weapon of offence and enables the

defendant to enforce a claim against the plaintiff as effectively as in an
independent action. Counter claim is allowed to be raised to avoid
multiplicity of proceedings between the parties.

If the defendant has a separate claim against the plaintiff, which

he might have asserted in a separate suit, he may raise it as a counter
claim in the existing suit. Counter claim is restricted to money claim
only.

Counter-claim means a claim set by the defendant in a suit

against the plaintiff. Counter claim is substantially a cross action.

Any counter claim against the claim of the plaintiff may be set off
in the written statement. Such counter claim should not exceed the
pecuniary limits of the jurisdiction of the Court.

The counter claim shall have effect as a cross suit and the
plaintiff can file a written statement in answer to the counter claim
within a prescribed period.

The counter claim is treated as a plaint and all

the rules applicable to plaints are also applicable here. If the
defendant has filed a counter claim and the suit of plaintiff is stayed,
discontinued or dismissed, the counter claim may be proceeded with.
 If the plaintiff fails to answer to the counter claim made by
defendant, the Court may give judgement against the plaintiff.

If the defendant relies upon several distinct grounds of defence or

set off or counter claim, founded on separate and distinct facts, they
shall be stated separately and distinctly.

DIFFERENCE BETWEEN SET OFF AND COUNTERCLAIM

SET OFF

1. It is a plea of defence.

2. It is for ascertained or definite sum.

3 It arises out of the same transaction.

4. Set off is a valid defensive action.

5. Set off should not be barred by limitation on the suits.

6. No Court fee is required in case of equitable set off

COUNTER CLAIM

1. It is a cross action.

2. It is for ascertained or unascertained sum.

3. It need not arise out the same transaction

4. Counter claim is an offensive action.

5. Counter claim should not be barred on the date of written

statement.

6. It requires Court fee

 DOCUMENTS TO BE ATTACHED ALONG WITH THE
WRITTEN STATEMENT

The following documents should be attached with the written

statement:

1. List of documents supporting the defence pleas shown in

Annexures.

2. Form of addresses.

3. Power of Attorney, if the written statement is filed through a

counsel.



2. CONTENTS IN A WRITTEN STATEMENT

1. THE TITLE

a) The tile of the written statement should be the same as that of the
plaint.

b) If there are more than one plaintiff or more than one defendant in
the plaint, then it is not necessary that the names and
descriptions of all the plaintiffs and the defendants to be given in
the written statement.

c) In case of two plaintiffs or defendants, the name of

plaintiff/defendant No.1 may be mentioned and the words “and
another” may be added.
d) If there are more than two plaintiffs or defendants the name of
plaintiffs/defendant No: 1 followed by the words “and others” may
be mentioned.

SPECIMEN

i) A Plaintiff

Versus

B Defendant

ii) A and another Plaintiffs

Versus

B and another Defendants

iii) A and others Plaintiffs

Versus

B and others Defendants

2. NATURE OF THE SUIT AND THE NUMBER AND YEAR

OF THE SUIT

These particulars should be given in the same way as in the

plaint.

3. THE NAME OF THE DEFENDANT

The name of the defendant and in case there are more than one,
on whose behalf the written statement is being filed, should be
specifically mentioned.

4. BODY OF THE WRITTEN STATEMENT -

a) Thereafter the allegations contained in the plaint should be
admitted or denied paragraph-wise. The body of the written
statement should be divided into paragraphs consecutively
numbered.

b) The grounds of defence and set-off founded on separate distinct

facts should be stated separately and distinctly.

c) If the defendant wants to take up some particular grounds of

defence or wants to set up his own counter case on the basis of
some material facts, those facts should be stated under the head
“Additional Pleas”.

d) The written statement should be then signed and dated by the

defendant.

5. VERIFICATION

The contents of the written statement should then be verified in

accordane with the provisions contained in Order VI, Rule 15 Civil
Procedure Code.

C. DEFENCES IN WRITTEN STATEMENT

1. DENIAL

The defendant may deny all or any of the set out facts in the
plaint, if the defendant does not admit any or all such set out facts.

The admission may be absolute or conditional. If conditional, the

written statement reads - The defendant admits the set out fact no
…… but says that …………

On the …………. day of ………… a diamond ring was delievered

by the defendant to and accepted by the plaintiff in discharge of the
alleged cause of action.
 For eg., Though the defendant admits that he is a partner in
the defendant firm …………………... of ………………..., he denies that
he made the contract alleged or any contract for that matter with the
plaintiff.

2. LIMITATION

The suit is barred by Article ……………. of the Schedule to the

Indian Limitation Act, 1908.

3. JURISDICTION

The Court has no jurisdiction to hear the suit on the ground that
(set forth the grounds).

4. INSOLVENCY

The defendant has been adjudged an insolvent. The plaintiff

before the institution of the suit was adjudged an insolvent and hence
the right to sue vested in the Receiver.

5. MINOTITY

The defendant was a minor at the time of the alleged contract.

6. PAYMENT INTO COURT

The defendant as to the whole claim has paid into Court

Rs…………… and says that this amount is enough to satisfy the
plaintiff’s claims.

7. PERFORMANCE REMITTED

The performance of the promise alleged was remitted on the

…………. of ……….. 20 ……
8. RECISSION

The contract was rescinded by agreement between the plaintiff

and the defendant.
 9. RES JUDICATA

The plaintiff’s claim is barred by the decree in the suit no

————— already decided by ——————— Court.

10. ENTOPPEL

The plaintiff is estopped from denying the truth (write the

statement as to which estopped) which is claimed.

11. GROUNDS OF DEFENCE SUBSEQUENT TO

INSTITUTION OF SUIT

Since the institution of the suit, ie., on the……………… day

…………… of ………… (set out facts of defence subsequent to
institution of suit).

***

3. MODEL WRITTEN STATEMENT

MODEL - I

In the Court of ———————— Judge at ————

Suit No. ———————/20 ————

A, son of ………, resident of ………… Plaintiff

versus

B, son of …………, resident of ……… Defendant

WRITTEN STATEMENT OF THE DEFENDANT UNDER

ORDER VIII RULE 1:

The respondent(s) respectfully state(s) as follows :

1. Para no. 1 of the plaint is admitted and needs no reply.

2. Para no. 2 of the plaint is admitted and needs no reply. (Facts

constituting cause of action)

3. Para no. 3 of the plaint is admitted and needs no reply.

4. Para no. 4 of the plaint is admitted and needs no reply.

5. Para no. 5 of the plaint is denied and not admitted because

———————————————––––––––––––––––––––––––––––––––––
———

6. Para no. 6 of the plaint is denied and not admitted because

————————————————————————————————
———

7. Para no. 7 of the plaint is denied and not admitted because

————————————————————————————————
———

8. It is submitted by this defendant that —————————— (state

new defences in favour of the defendant)

9. It is submitted by this defendant that —————————— (state

new defences in favour of the defendant)

10. The value of the subject matter of the suit plot is more than
5,00,000/- and so this Court has no jurisdiction to try this case.

11. The subject matter of the suit is situated in ——, and so this Court
has no jurisdiction to try this case.
12. The defendant therefore prays that the suit be dismissed with
costs.

Advocate (Signature of the defendant)

Place: ………………….
Date: …………………..

VERIFICATION

I, ______, do hereby verify that the contents from paras 1 to 12

are correct and true to the best of my knowledge and personal belief
and no part of it is false and nothing material has been concealed
therein.

Affirmed at ————- this ——- Day of —— 20––––.

(Signature)
Defendant

***
MODEL - II

In the Court of —————— Judge at ——

Suit No. ————— /20 ————

A, son of …………., resident of ………… Plaintiff

versus

B, son of …………., resident of ……….. Defendant

 The defendant submits as under by way of his written
statement:-

1. That para no.1 of the plaint is not denied.

2. That the averments in para no.3 of the plaint are utterly false, and
sheer concoction. It is absolutely incorrect that the last line of the
para is utterly vague. The allegation is utterly false, and its
vagueness show its hollowness.

3. That the allegations in this para are false and sheer concoction. No
such incident, as alleged in this para ever happened. The incident
has been concocted in order to put pressure on the defendant to
give up his rights subject to the matter.

4. That para no. 5 of the plaint is false and the allegations are a sheer
concoction.

5. That para no. 6 of the plaint is wrong and traversed. The plaintiff
has no cause of action to file and maintain the suit.

6. That the jurisdiction of this Hon’ble Court is not disputed.

7. That para no.8 of the plaint is legal. The allegations relate to court
fee.

It is prayed that the suit of the plaintiff may kindly be dismissed

with costs. The suit is false to the very knowledge of the plaintiff, and
is one of the series of harassing tactics that the plaintiff has started in
order to get his illegal and high-handed demand fulfilled on the part of
the defendant.

This suit is palpably malafide, frivolous and vexations. The

defendant deserves special costs under S. 35-A C.P.C.
Advocate (Signature of the defendant)

Place: ……
Date: ……

VERIFICATION

I, ______, do hereby verify that the contents from paras 1 to 12

are correct and true to the best of my knowledge and personal belief
and no part of it is false and nothing material has been concealed
therein.

Affirmed at ——— this —— Day of –——20––––.

(Signature)
Defendant

