Answer Writing : Civil Procedure Code, 1908

Q. Define legal set-off and counter claim? Differentiate between legal setoff and counter claim. Also, discuss the concept of equitable setoff with relevant case laws?                                                                              [10 Marks]

Answer:  

Legal Set-off: In a money suit, the defendant can claim an amount due to him by the plaintiff, in the same legal capacity or relations by virtue of Rule 6 of Order VIII of the Code of Civil Procedure, 1908 (hereinafter referred to as the “CPC”). Such a claim is called a setoff.

Counter Claim: On the other hand, Rules 6A to 6G of Order VIII of CPC enable the defendant to claim a sum of money or any other right from plaintiff and the same is called a counterclaim. Both assume the nature of cross-suit, and the original plaintive must file a written statement in answer to these. Both must not exceed the pecuniary limits of the courts where they are filed.

Some points of distinction between the two are:

Set-Off	Counter Claim
1.     Only an ascertained sum of money can be pleaded. 2.     It is filed at the first hearing. 3.     Both parties must set off in the same capacity as the original suit, though capacities may be reversed. 4.     As per Section 3, Limitation Act, 1963 it is deemed to have been filed on the date of institution of the suit.	1.     Money or any other right or title can be pleaded. 2.     It can be filed till the defendant files his written statement. 3.     Treated as a plaint and rules under Order VII, CPC apply upon it. 4.     As per the same provision, it is deemed to have been filed on the day it is filed.

Equitable Setoff

Equitable Setoff is a common law concept. There is no provision relating to it in the CPC though courts have recognized it under Order 20, Rule 19(3), CPC. Unlike legal setoff, as per the decision in Union of India v/s Karamchand, equitable set-off can also be for an unascertained sum of money, in a money suit. The claim should be legally recoverable & both claims should arise from the same transactions. The major advantage of an equitable setoff is that the party can also claim an amount which is otherwise barred by limitation. Also, no court fee needs to be filed for a claim that is equitably deductible. But unlike legal setoff, an equitable setoff cannot be claimed as a matter of right and allowing the claim is at the discretion of the Court.  

Answer Writing Checklist

As I was writing answers for my book, it struck me what if I am not able to convey my idea of a model-answer through these samples? What if instead of focussing on the structure, a candidate focuses too much on the content alone? An answer is equal parts content and equal parts structure. I thus hurriedly made a list of things that I think are essential to be borne in mind before writing an answer. This is not an exhaustive list and as and when something will come to mind, I will add it here. Thus, you may keep revisiting this periodically to check for new updates, and to revise the old ones. 

The following are the essentials of 'my' model-answer:

• Keep the answer short. Nobody has the time to read a lengthy answer. Just focus on what is being asked and move on. The examiner checks with an indicative answer-key which enlists all the legal points your answer needs to have and he thus awards marks accordingly. He probably has some 40-50 answer-sheets to finish till he can call it a night and will not appreciate unnecessary ramblings.
• Needless to say, there is only one accepted way to tackle a problem based question which is guaranteed to fetch you marks and save some time. It is the beautiful IRAC method, to which I was introduced in my early years of law-school and have ever since taken a strong liking to it. IRAC stands for Issue-Rule-Analysis-Conclusion. It is pretty self explanatory. The chronology you will follow will be: 1. Identifying the issue(s), 2. Writing down the Rule i.e the legal provisions or, if it is a case-based law then that, 3. Analysis is where you will bring together the rule and the issue and examine the issue through the lenses of the rule you just wrote. This part will also include landmark or relevant cases, if any. Seriously, don't stress about case-laws too much. If you can recall them it's okay. if not, your analysis will still fetch you good marks; and lastly 4. Conclusion where you simply pronounce the outcome in one or two lines. Answer writing samples can be found here.
• The basic structure of a typical descriptive type answer, if it bears 10 marks or more should be something like this: an introduction, acknowledging what you will deal with, the legal provisions concerning the problem, a discussion including landmark case-laws, if any, and a one/two line conclusion. It will be wise to follow the IRAC chronology, just not as objectively and strictly. The issue part is substituted by a wider, introduction part. But be careful not to over-introduce the topic. Introduce the topic in simple and concise words.  In the declaratory decree answer here, I have made sub-topics to provide clarity but the actual answer should be shorter. Answer writing samples can be found here. 
• Refer to the full name of the legislation you are referring to, and if you have to refer to it multiple times in the answer, assign an acronym to it. For example, don't write "under section 9 of the CPC". Instead write "under Section 9 of the Code of Civil Procedure, 1908 (hereinafter referred to as the "CPC")". In later parts of the answer, you may refer to it simply as 'CPC'.
• Remember, in answer writing an act and an Act aren't the same thing, when it comes to legal writing. An act is a verb and an Act refers to the piece of legislation you have earlier referred to. Example: "thus it seems imperative that A'a act would amount to breach of contract under the Act."
• Sometimes it is good to refer to the purpose of the law on which the question is asked. For example, if it is a question asking whether the parties are liable to get a divorce or not, I would refer to the purpose of a marriage under the law applicable to the parties, and thus move on to say whether that is being fulfilled in the instant case or not, and then substantiate that with the actual legal provision, if it is codified (as we know, some grounds are not codified under muslim law). Long essays could be written on the purpose of marriage, thus I would stick to introducing all the key elements and not dwell too much on the philosophical aspect. Again, one or two sentences max.
• Did you notice how I used 'max' in the above sentence? Using this kind of language is a strict no-no. Leave all the cool lingos outside the examination hall. Use proper, 'formal' words.
• If you think that though the answer has been asked under one 'subject' (because this is how we aspirants see each piece of legislation when it comes to the exam), but reference to another subject would be quite beneficial, then don't shy away from doing that as long as you do not deviate entirely from the intended subject because ultimately what you need are marks and how you will get them is by complying to the answer-sheet the examiner has been provided by the High Court/PSC conducting your exam. But a few brownie points don't hurt anyone, so act smartly. An example can be found in this answer on specific enforcement of a contract for the sale of property. 
• It's always a good idea to refer to the courts as 'honourable'. Thus, my typical answer would contain something like this: "the Hon'ble Supreme Court held in the case.." It's a small thing and nobody is going to penalise you for not complying but it's always a good idea to develop the habit of writing like this; something that even I developed during my mains preparation days.
• It is a good idea to write in paragraph form as opposed to in pointers in a long-answer. If it is a 2-4 marks answer, you may write in pointers (like I have in this check-list). I personally prefer pointers as I find them time and effort saving for the examiner but I have been warned against them by my professors repeatedly and thus have given up on them when it comes to answer-writing. As one would not expect a good judgment, or a good book to be written in bullet points, one does not expect the same out of a good answer.

*If you have any queries that I may have missed, you can shoot them in the comment section below. 

Answer Writing : Indian Penal Code, 1860

Q. A, under the influence of passion excited by provocation by B; kills C intentionally. A’s liability?                                                           [5 Marks]

[Note: Follow IRAC Method (Issue-Rule-Analysis-Conclusion) in factual questions.]

Answer: The sole issue for adjudication in the factual matrix of the instant case is the culpability of accused where he kills another intentionally under the influence of passion excited by provocation.

Section 300 of the Indian Penal Code, 1860 deals with the offence of culpable homicide amounting to murder, and provides the exceptions to its application. The facts state that A killed C intentionally. Thus, his act constitutes the offence of culpable homicide amounting to murder.

Exception 1 to the Section reads: “Culpable homicide is not murder if the offender, whilst deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident.”

It is noteworthy that the provocation mentioned herein was neither grave nor sudden. The Hon’ble Supreme Court in KM Nanavati v. State of Maharashtra, [1962] held that the provocation given under First Exception to Section 3x00 of the Indian Penal Code, 1860 must be grave as well as sudden. Thus, A is not entitled to the benefit of Exception 1 of the above-mentioned section. Another argument may be that A was acting under the influence of “passion”, but this passion will not be protected under Exception 4 to Section 300 of the Indian Penal Code, 1860 as that is a result of sudden quarrel which is not the case here.

Thus, A having acted intentionally, will be liable for the murder of C under Section 300 (Firstly) of the Code. He is to be punished with life imprisonment or death along with fine under Section 302 of the Code.        

Answer Writing: Specific Relief Act, 1963

     

Q. Can the following contracts be enforced specifically:-

a. A contract for the sale of property which is under attachment by Court’s order?

Ø  After 2018 Amendment to the Specific Relief Act, 1963, relief of specific performance can be refused only on the grounds mentioned in Sections 11(2), 14 and 16 of the Act and none of them provide that property attached by Court cannot be sold by contract. In fact, Section 52 of the Transfer of property Act, 1882 provides that contract for sale of property which is the subject-matter of a suit is not void but is subject to the decision of the Court; thereby implying that such sales are allowed.

Therefore, Court can order specific performance of the contract mentioned above subject to the decision of the Court which has attached the property. In case the defendant gets the right to be able to sell the property, the Plaintiff can ensure its performance by virtue of Section 13 of Specific Relief Act, 1963.

 

b.    Contract to marry?

Ø  Though 2018 Amendment to Specific Relief Act, 1963 (Hereinafter referred to as “SRA”) made the relief of Specific Performance of Contracts mandatory. Sections 11(2), 14 and 16 enlist certain situations where a contract cannot be enforced specifically. One such ground is given in Section 14(c) of the SRA namely: contracts based on personal qualification. ‘Personal Qualification’ is nowhere defined in the Act but it broadly includes contracts based on personal skills or personal relations, etc. A contract to marry also falls under this category. Marriage in India has been recognized as a sacrosanct irrespective of the religion of the parties. It cannot be specifically enforced because its purpose is to not just enter into the ceremony of marriage but to honor matrimonial alliance as much as possible. Holding otherwise would result in instability, destitution and vagrancy; some things that are opposed to our public policy. For these practical and statutory impediments, a contract to marry cannot be enforced specifically. 

Q: State the principles governing the grant or refund of a Mandatory Injunction. Under what circumstances can the Court grant an injunction to perform a negative agreement? 

A: Introduction

There are two modes of relief: (i) by compensation, and (ii) by injunction. The latter could further be of two kinds depending upon the time period of its operability: (i) Temporary Injunction, which is granted upon prima facie facts and thus stays operative till a certain time or stage, and (ii) Perpetual injunction, whose operative period isn not restricted. It is final in nature and is thus granted upon merits of the case. On the other hand, depending upon the nature of the injunction granted, it can either be a (i) prohibitive injunction or a (ii) mandatory injunction. In the former case, as the name suggests, there is a restriction upon some action whereas in the latter case, there is a duty to not do something coupled with an order compelling performance.

[full text coming soon]

Q: What do you understand by declaratory decree? What is its practical utility? 

A: The following is a sample answer. Actual answer must be much shorter.