What is Set off? Alternative Dispute Resolution, Service of Summons

What is Set off? ADR, Service of Summons

Question: What do you understand by set-off? When such objection can be raised? What is its legal value on the examination of the merit of the plaintiff's case? Discuss with the relevant provisions of the Code of Civil Procedure.

Answer:

What a Set off is:

When the plaintiff files a suit against the defendant for recovery of money, the defendant may make a written application to reconcile the plaintiff's claim with the defendant's claim on the day of the first hearing. In the case of set-off case, not only the plaintiff owes money to the defendant, but also the defendant owes money to the plaintiff. However, in this case, the claim of the defendant must be equal to or less than the claim of the plaintiff. In the case of set-off cases, the amount of money must be fixed, the money must be legally recoverable and the money claimed must be within the pecuniary jurisdiction of the court. Pursuant to Rule 6 (1) of Order-8 of the Civil Procedure Code, if the plaintiff seeks to settle the claim against the defendant with the money due from the plaintiff in the case filed for claim of payment and the amount due is not beyond the jurisdiction of the court, and both parties fall into the same category, the defendant shall be able to submit a written statement detailing the amount owed to him.

What the conditions for set off are:

The following conditions must be met for Set off.

1. The lawsuit must be about recovery of money.

2. In case of money claimed, the details must be as follows:

✓It must be a fixed amount.

✓The amount of money will be legally collectible.

✓It must be recoverable by the defendant or defendants (if any).

✓The amount mentioned must be within the limits of the pecuniary jurisdiction of the court in question.

When to set off can be claimed:

According to Rule 6 (1) of Order-8 of the Civil Procedure Code, the respondent can make a written application for the set off on the day of the first hearing. Such excuses cannot be made without the permission of the court after the first hearing.

Legal value in judging the merits of a plaintiff's claim:

As per Rule 6 (2) of Order-8 of the Civil Procedure Code, the meaning of reciprocal claim is that the written statement shall be treated as counter plaint and the judge may give the same judgment in the original case and in the counter case. But it will not be affected by any lawyer's claim on the cost of the decree.

Pursuant to Rule 6 (3) of Order-8 of the Civil Procedure Code, the rules relating to the written statement of the respondent seeking the settlement of the mutual claim shall also be applicable to the reply to the given statement.

Example of Set off

A files a suit against B for tk. 10,000. B claimed in his written reply that he received tk. 5,000 from A on the basis of the pledge. So after deducting tk 5,000 from tk. 10,000, B will get the remaining tk. 5,000. Such an application is called Legal Set off.

Question: What do you understand by ADR? Discuss the provisions of mediation by ADR.

Answer:

What Alternative Dispute Resolution is:

The Law and Justice Department has taken a groundbreaking step in the legal system by enacting Alternative Dispute Resolution Rules for the establishment of justice and incorporating it into the existing laws of the country, which has speeded the justice.

Alternative Dispute Resolution (ADR) is the process of resolving disputes or problems of the parties by going outside the court or general legal process by following the legal procedure and agreeing.

What Mediation is:

According to Section 89A of the Civil Procedure Code, except under the Artha Rin Adalat Ain, 2003, after filing a written statement, the court will adjourn the hearing and ask both parties to mediate, and refer the matter to the legal aid officer or to the any arbitrator of the panel constituted by the District Judge to settle the dispute through arbitration or mediation.

Who can mediate:

After submitting a written statement, the court may by adjourning the hearing:

1. The court can mediate itself or send the same for mediation to the-

2. The Legal Aid Officer, or

3. To the lawyers appointed by the parties or to the parties if the lawyers are not appointed or

4. To the panel constituted by the District Judge to settle the dispute through arbitration or mediation.

How long it takes for the court to be notified of the appointment of an mediator:

The court has to be informed about the appointment of a mediator in writing within 10 days from the date of receipt of the reference. However, if the parties fail to appoint a mediator, the court will select an arbitrator within 7 days. This means that the parties can get a maximum of 17 days for the appointment of a mediator.

Create a mediator panel:

The District Judge may, in consultation with the President of the District Bar Association, form a mediation panel with retired judges, or with persons who may settle disputes, or persons who are not employed in office of profit in the Republic.

Within how many days the mediation is to be completed:

Mediation must be settled within 60 days. However, if the mediation fails to settle within that period, the court may extend the time by not more than 30 days. That is, the settlement must be made within a maximum of 90 days for mediation.

What the outcome of mediation is:

The report of mediation is to be submitted to the court through the lawyers of the mediation parties. That report should contain the signature or the finger impression of the parties and the lawyers or the mediators as the witnesses. The court will issue an order or decree within 7 days of receiving the report.

If the dispute is resolved through mediation, which remedy will not be available:

Pursuant to section 89A (12), the following remedies cannot be obtained if the dispute is settled through mediation:

(a) appeal and (b) revision.

Question: Describe the procedure of serving summons to the defendant under the code of civil procedure, 1908. Determine the outcome of the summons. When can the plaintiff be informed about the case by letter instead of summons?

Answer:

What the Issue of Summons is:

Order 5 of the Civil Procedure Code deals with 3 methods of issuing summons to a defendant:

1. The first method is by providing a copy of the summons to the defendant personally or to his representative or to another person on his behalf.

2. The second method is to issue summons according to Rule 17.

3. The third method is to issue summons according to Rule 20. Summons can usually be issued in this manner after receiving a court order.

What the Substituted Service is:

In accordance with Order-5, Rule-20 (1) of the Civil Procedure Code, where the court reasonably believes that the defendant is keeping himself hiding in order to avoid the summons, or for any other reason the summons is not being issued normally, in that case, the court will order the issuance of a copy of the public notice in any public place of the court and the place where the defendant resides or does any work for business or works for personal gain.

According to Order-5, Rule-20 (1A) of the Civil Procedure Code, Court can order the issue of summons by publishing the notice in the newspaper. However, the publication of the newspaper must be in the place of residence of the defendant or in the place of conducting business.

What the Consequences of affixing is:

If the summons is issued in accordance with the order of the court in accordance with Order-5, Rule-20 (2) of the Civil Procedure Code, that is, if a summons is issued by hanging or affixing, it will be as effective as issuing a personal summons on the defendant. Service substituted by order of the Court shall be as effectual as if it had been made on the defendant personally.

If the summons is issued as per the order of the court as per order-5, rule-20 (3) of the Civil Procedure Code, the court will fix an appropriate time for the appearance of the respondent in the special case.

Question: A court of Dhaka summons X to produce some documents. But X fails to produce those documents. Can you take steps to compel X to produce the said document?  Answer by quoting the relevant rules of The Code of Civil Procedure 1908.

Answer:

According to section 30 of the Code of Civil Procedure, Court may issue summons to those who need to appear on their own initiative or on the application of any party for submission of documents or other purposes. Pursuant to Section 32 of the Civil Procedure Code, a person who is summoned by a court under section 30 may, if he disobeys the summons, court may compel the person to appear by the following order and in accordance with rule 10 of order 16 of the Code of Civil Procedure court may issue a proclamation to the witness to be present before the court or to present documents within a fixed time and place as mentioned in the summons.

Moreover, court may:

a. issue a warrant for arrest;

b. can seize and sell property;

c. can fine not more than 500/- (five hundred taka);

d. can order him to appear for furnishing securities and if fails, can send him to jail.

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