Before noticing the difference between counter-claim and set-off we must understand the counter-claim itself. If the defendant in an action has a claim against the plaintiff, which he might have asserted by bringing a separate action he may raise it in the existing action as a counter-claim by adding to his statement of defence a statement of the fact on which he bases his claim, and of the relief which he claims against the plaintiff, either alone, or Jointly with others.
In view of the amendments to the Code of Civil Procedure by Act No. 104 of 1976 a counter-claim is competent and the defendant, when he seeks to rely upon any ground as supporting a right of counter-claim, shall in his written statement, state specifically that he does so by way of counter-claim.
ADVERTISEMENTS:
Distinction between set-off and counter-claim:
The distinction between set-off and counter-claim may now be noted:
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(1) Set-off must be for an ascertained sum or must arise out of the same transaction as the plaintiffs claims; a counter-claim, however, need not arise out of the same transaction.
(2) Set-off is a statutory ground of defence and is to be pleaded in the written statement. Counter-claim, on the other hand, is a weapon of offence enabling a defendant to enforce his claim against the plaintiff as effectively as in an independent action. It is a sort of cross-action. A set-off, on the other hand, can be used as a shield and not as a sword.
ADVERTISEMENTS:
(3) In the case of set-off the plaintiff in order to establish his plea or limitation has to prove that the set-off was barred when the plaintiff commenced his action. In a counter-claim the plaintiff has to prove that it was barred when it was pleaded.
(4) An equitable set-off is a claim by the defendant in defence which generally cannot exceed the plaintiffs claim. A counter-claim by the defendant may, however, exceed the plaintiffs claim being in the nature of a cross-action. Under the provisions of R. 6-E of O. VIII, if in any suit a set-off or counter-claim is established as a defence against the plaintiffs claim and any balance is found due to the defendant, as the case may be, the court may give judgment to the party entitled to such balance.