Basis

Set off

Counter claim

1. Meaning

A claim by the defendant to adjust or deduct a certain sum of money claimed by the plaintiff.

A cross suit by the defendant against the plaintiff raising an independent claim.

2. Statutory provision

Order 8 Rule 6 of the Code of civil procedure, 1908.

Order 8 Rule 6A-Rule 6G of the Code of civil Procedure, 1908.

3. Nature

Defensive in nature.

Both defensive and offensive.

4. Type of claim

Must be a liquidated amount (ascertain sum of money).

May be liquidated or unliquidated.

5. Scope

Limited only to money claims.

Can relate to any cause of action, including damages.

6. Arises from

Generally arises out of the same transaction.

May arise from the same or a different transaction.

7. Pecuniary limit

Must be within the pecuniary jurisdiction of the court.

Must also be within the pecuniary jurisdiction of the court.

8. Independent decree

No independent decree, only adjustment.

Can result in an independent decree favour of defendant.

9. Effect if plaintiff's suit fails

Set off fails along with the suit.

Counter claim may still survive and be decided.

10. Purpose

To reduce or wipe out plaintiff claim.

To avoid multiplicity of proceedings.

11. Legal Character

Purely a statutory defence.

Statutory right - having the character of a cross suit.

12. Written statement

Must be specifically pleaded in the written statement.

Also pleaded in the written statement but, treated as a separate plaint.

13. Legislation

Not register as a separate suit.

Treated almost like a separate suit and can be registered separately.

14. Withdrawn of plaintiff's suit.

Set off fails cannot survive.

Counter claim survive, even if plaintiff withdraws the suit.

15. Limitation

Limitation applies as to defendant’s claim on the date of plaintiff's suit.

Limitation applies as on the date of filing counter claim.

16. Cause of action timing

Must exist on the date of institution of the suit.

Cause of action may accrue before or after institution of suit, but before delivery of defends.

17. Relief claim

No separate relief claim.

Defendant can claim independent relief.

18. Evidence

Limited evidence requires.

Full trial possible with separate issue and evidence.

19. Execution

No independent execution proceeding.

Decree in counter claim is independently executable.

20. Appeal

Appeal lies only against final decree of suit.

Appeal can be preferred even if suit is dismissed.

21. Res Judicata

Operates only incidentally.

Operates fully as res judicata.

22. Transfer of suit

Set off automatically goes with the suit.

Counter claim may be excluded or transferred separately.

23. Multiple defendants

Generally allowed only between plaintiff and defendant.

Counter claim may be filed against plaintiff and court- defendants.

24. Against whom maintainable

Only against the plaintiff.

May be against plaintiff or third parties (with court's permission)

25. Court's discretion

Limited discretion.

Wide discretion to exclude Counter claim under order 8 Rule 6c.

26. Amendment

Rarely allowed after filing written statement.

Amendment of counter claim allowed under CPC.

27. Court fees

Usually no separate court fee.

Separate court fees required.