"Set-off clauses are a tool which are utilized by the sellers of products and the manufacturers as well as the banks as a means of protection from their default buyers or customers."
An article by Julia Kagan which was published in 2o2o on Investopedia helped the researcher to comprehend the definition of the right to set-off. In this article the definition was explained by the way of a number of examples which proved to be very helpful for the researcher in making of this research paper. The working of the set-off clause was also explained in this article. The benefits of such a clause were also talked about here and all these were very helpful for the researcher in comprehending the right to set-off in totality.
To understand what is the right to set off, the researcher referred to an article by FW Neate titled Set Off which was published in the year 1981in the International Business Lawyer. In this article the researcher understood what all is inclusive in this right and when is this right applicable. There were also a number of cases which were referred to in this article which helped the researcher into understand the term in depth. The various types of set offs have also been talked about in this article which helped the researcher to make differentiation among them.
A few Indian cases were referred in the article which was written by Antara Das Gupta titled Bankers Right to Lien and Set off which gave the researcher an insight about the stand of India on this right. The article also explained the relationship between lien and set-off.
The updated laws relating to Set-Off were understood by the researcher in the article by Mark Heslin titled Update on the law relating to set off. In this article, the laws on this right in various countries has been talked about. The operation of this right along with its limitations were also understood in this. In this article, the researcher also understood when such a right is made available.
The research method which was adopted by the researcher was the doctrinal method of research. The researcher began by understanding the topic of the research paper i.e. set offs and read a number of articles and judgements on the same. The researcher further examined the problems or the limitations which have been associated with this right.
The researcher during this course found out that there are a few limitations which are related to this right of set-offs. The researcher lastly understood the legal framework which is associated with this right and how the same is put into use.
The researcher has divided this research paper into three chapters. The first chapter talks about the introduction to this topic of right to set-offs and discusses various examples which are related to the same. the researcher here has also talked about when this right is utilized. The source of this right have also been discussed in this chapter i.e. why such right was considered necessary to be included within the legal framework.
After this in the second chapter of the research paper, the researcher has talked about the various cases which have been associated with the right to set offs and how the jurisprudence of this right has evolved over the time. The cases pertaining to this right are from courts around the world including the United Kingdom and United States.
In the third chapter, the researcher has discussed about the limitations and various other issues that are associated with this right among other things which are being discussed. Lastly, the research paper has been concluded by the researcher in form of conclusion at the end.
According to Section 47 of the Presidency Towns Insolvency Act, when between the insolvent and the creditor, there has been a mutual dealing which proves or claims to prove a debt under this Act, it would be taken into account of what is due by one party to the other party with respect to such mutual dealings and the amount which is due from one party shall be set off against any sum due from the other party and no more can be claimed by any side than what is due or the balance. The right of set off is wider under the bankruptcy law than that in the general law. [1o]
Section 31 of the Bankruptcy Act 1914 provides for the rules which are applicable in a proceeding for bankruptcy for the debts which are provable and the liabilities which arise from the mutual dealings. The provisions of Section 31 are applicable to the winding up an English company which is insolvent as well as to bankruptcies which are personal through Section 317 of the Companies Act 1948.
Section 31 of the Bankruptcy Act 1914 given that "Where there have been mutual credits, mutual debts or other mutual dealings, between a debtor against whom a receiving order shall be made under this Act and any other person proving or claiming to prove a debt under the receiving order, an account shall be taken of what is due from the one party to the other in respect of such mutual dealings, and the sum due from the one party shall be set off against any sum due from the other party, and the balance of the account, and no more, shall be claimed or paid on either side respectively; but a person shall not be entitled under this section to claim the benefit of any set-off against the property of a debtor in any case where he had, at the time of giving credit to the debtor, notice of an act of bankruptcy committed by the debtor and available against him."
The application of Section 31 extends only to the insolvency in which the Bankruptcy Act 1914 applies and the Section would be barred for application in cases where neither party to the right of set off is an insolvent or in if they are insolvent but the governing of the insolvency is not done by the English insolvency rules. The term used in the section is Shall. The interpretation for the same is that the application of the section is mandatory and thus it regardless of the terms of the contract between the parties, Section 31would apply mandatorily. Hence, it has been said rightly that the cannot contract out of or into Section 31.
The term "mutual" has been referred to in the Section frequently. Hence, it is quite safe to say that under Section 31, when the debts are to be set off then they must be owed by the same parties in the same right. Example for the same can be when a debt is owed to a company's shareholder, it cannot be set off against the debt which is owed by the company.
Thus, under Section 31 of the Bankruptcy Act 1914, there is statutory definition of the right of set off in insolvency. The application of the same is on insolvencies where such issues are to arise most likely and on the application of Section 31, there is a considerable body of case laws. The implementation ability of a right of set off when a debtor is insolvent as a rule is way more important to a creditor than in a dispute or a transaction with a solvent debtor. In an insolvency, the rights of the creditors ae affected in a set off.
This is because the creditor with whom the right of a set off is available paid effectively as a priority as compared to the other creditors and hence due to this the availability of the assets to the other creditors is thereby diminished. Consequently, the outlook of the Courts to a claim of set off in an insolvency may seem to be less lenient than what might actually be the case where the other creditors' rights are less likely to be negatively affected.
When there is an express contractual agreement which creates a right of set off, then a contractual set off arises. When the set off rights under the general law want to be limited or extended by the contracting parties then this is used. This type of a set off is significant for transactional dealings since the set off right can be conferred in situations where it would not exist otherwise or in ways which are distinct to rights of set-off available under general law.
The set off provisions can be agreed by the parties by the way of a contract. The enforcement of the provisions of such a contract would be like that of any other contractual rights. However, there are certain qualifications which need to be there in the mind which drawing up of the contract in which the express provisions of the right of set-off are created.
A formation of charge may be done by such contractual rights and this charge may create a charge on the book debt for which registration is required under Section 95 of the Companies Act, 1948and if there is creation of such charge and it is not registered then it will be void. Whether or not registration is required, a charge in form of other debt instruments may also include a breach of "negative pledge" clauses.
Unless the creation of charge is done by the express rights of set off, in an insolvency they will probably be ineffective at least to the degree they signify to confer more wide-ranging rights of set off compared to those which are conferred by Section 31 of the Bankruptcy Act, 1914.
In the House of Lords case of British Eagle International Airlines Limited v. Air France, the Air France and British Eagle both belonged to a clearing house arrangement and a contract was constituted for the regulations of this under which the debts which were owed to and from the several member airlines for the services performed for each other were netted out every month which means that there was a producing of a particular sum of money post the payment of taxes and other costs.
There was voluntary liquidation by the British Eagle on 8 November 1968 and the money which was owed by Air France and British Eagle to each other and to other airlines for the services which were rendered by them were in the process of being cleared through the procedure of the clearing house for the production of amount of net sum owing from or to the clearing house from each member or to each member.
A test case which claimed the gross sum which was owed by Air France to British Eagle was brought by the liquidator of the British Eagle who believed that the arrangements of the clearing house were not binding on him. The case gave that the the liquidator was not binding by the arrangement so f the clearing house and hence nothing was owed directly to the British Eagle.
It was held in this case by the House of Lords that the payments which have been finalized through the clearing house before the procedure of winding up were effective but after the application of the the netting effect of the clearing house to the liabilities and assets of the British Eagle post the winding up commenced, it would amount to 'contracting out' as per the provisions of Section 3o2 of the Companies Act, 1948.
This provision is subjected to preferential creditors' rights and it requires satisfactory application of liabilities pari passu to the property of the company upon its winding up. In this case it was held that such a 'contracting out' is contrary to public policy. Hence the general rules of liquidation as given under Section 3o2 would prevail over the clearing house rules and therefore from the Air France, the British Eagle was entitled to recover the due gross sum.
A formation of charge or mortgage may be done by the way of a contractual right of set off. It is unquestionably debatable that any document which is expressing an intention that there is entitlement of the creditor to take property of the debtor for the fulfilment of the debt creates a charge on the property of the debtor or an equitable mortgage. 
Equitable Set Off
Counterclaim is a concept which is very ancient and something like this has been recognized in the Roman law which was known as "compensatio" originally which was a form of judicial set off. This was restricted to certain precise causes of action which were related to certain types of contracts. The use of this was gradually broadened and it was a general counterclaim provision by the reign of Emperor Justinian, where it was somewhat like a type of an automatic compensation.
This law of compensatio was also adopted by the French Law and the same appeared in the Code Napoleon, and it has also influenced on Justice Joseph Story, Lord Mansfield and David Dudley Field who were esteemed figures in the American and the English law whose influence led to the evolution of the doctrines of equitable set-offs and counterclaims.
The term equitable set off preceding the Supreme Court of Judicature Act 1873 was used when an injunction was issues by Court of Equity which prohibited a Court of Law from hearing a matter of claim when the defendant had a protection under good equitable ground. If such grounds of protection were not available with the defendant then the claim was to be pursued by him by the means of a separate cross action.
The court in the case of Hanak v Green[2o] discussed the extent of the right of the defendant to claim set off following the Judicature Act and the right was categorized by the court into three heads. Any equitable set off which formerly could have been asserted in a court of equity can be relied upon by any court. Second, the set off can be there for mutual debts and third in certain cases a complaint can be set up if established extinguishes or reduces the claim.
Equitable Set Off as a substantive matter, will be made available in situation where the good equitable grounds can be shown by the debtor which directly imply the demand of the creditor which arises either from the very same transaction as the demand of the creditor or are closely connect in a sufficient manner with the claim of the debtor or before the demand of creditor is met, equity must be considered. When such a claim is being assessed by the court, the court would consider whether the claim of the defendant would have been recognized by the former Court of Chancery and because of the same, an injunction order which restricted the action of law was issued.
Nevertheless, the equity fountain never runs dry. There would always be the interference of Equity for defeating unconscionable conduct. Hence, it would be incorrect to assume that at the time of Judicature Act, the classifications of set-offs were fixed and now cannot be expanded. The relevant question as indicated by Lord Denning in the case of Molena Alpha was that what can be done for ensuring that there is fair dealing among the parties. 
Statutory set-off (also known as legal or independent set-off).
The statutory/legal/independent set off can only be brought in court proceedings where two claims are ascertainable with certainty or liquidated or at the commencement of the action, both are due and payable. It is not necessary for two the claims to arise out of the same or a closely related transaction. It is not a substantive defences but it may be set up only as procedural defences the operation of which is for the reduction of the balance for which the claimant is entitled. It is available where both the claim as well as the cross-claim are for liquidated amount of money or for the relief which is based upon the non-payment of the liquidated amount, and they are mutual which means that it is due from the same parties in the same right and they have become due. 
The counterclaim or cross claim are closely connected to the equitable set offs by which a set off can be achieved in effect. The meaningful distinction between the counterclaim and set-off has been removed by The Judicature Act which allows consolidation of the cross-claims by way of counterclaims. But this difference can be relevant in cases of costs and order. 
In India, the concept of counterclaim was inserted by the 1976 amendment in the Civil procedure Code under the Order VIII Rule 6(A) and Rule 6(G) and was inserted for the reduction of the multiplicity of the proceedings. The Supreme Court recognised the counterclaim concept in the case of Gurbachan Singh v Bhag Singh and it was said by the court that counter claim is to be considered as a cross suit against the claim of the plaintiff and the same would be treated as a plaint and the rules of the CPC would apply on it as well. 
In the application of the right of set off, there are a number of limitations. One of the most important limitation is the limiting of the automatic right of set off to the current accounts. There is no automatic right which arises in the Common Law for the combining of the balance between the current account and the loan account or between the current account and the deposit account. The justification for this foregoing is that if proceeds of the current account of the customer could be set-off at the discretion of the bank against a loan amount then the customer would feel no security when he would draw a cheque on his current account.
The circumstances in which the balance is to be combined by the bank must be specified since the application of the right of set-off is not in the situations where one of the account is a loan account or deposit account as opposed to a current account. The bank is authorised to combine the balance of the deposit account with the current or loan account provided that the bank and the customer entered into a separate contractual agreement for the same. Hence, in such circumstances the right of set-off would be governed to the extent of the terms expressed in the contract and it would be contractual right rather than a Common Law right.
For the combination of the accounts of the customer which are held in different capacities, the Common Law right cannot be relied upon. So basically. This means that even if bank gets the knowledge by some means that the customer operates two or more accounts, one account in the personal capacity and the other one in the capacity of the trustee then these two accounts cannot be combed by the bank.
This is because of lack of the mutuality between parties in situations where money in one account does not belong to a customer beneficially. Hence, the same cannot be used for the reduction of the liability of the customer without obtaining consent from the beneficial owners of such fund. According to the Common Law rule for set-off, a bank which does not have notice that the account has trust funds, can't use credit balance of one current account for reduction of a debit balance in another.
However, caution should be exercised when one account is labelled as being something other than a current account. This would be even more significant if the bank was aware of the fact that fiduciary status was occupied by the customer.
The Common Law cannot be relied upon by bank in situations where the bank and the customer entered into an express agreement in which it was agreed by the bank that such combination of accounts of the customer would not be done. This agreement of not combining the accounts of the customer may be terminated by the bank upon serving a notice of the same where it is mentioned by the bank that it has the intention of exercising the right to combine.
There is no law which specifies the same but according to the English cases, such a notice would have an immediate effect. It has been recognised by the House of Lords that even if a reasonable period was given to the customer after serving of such notice then it would provide an opportunity to the customer for withdrawing of the funds from their accounts which would in totality defeat the purpose of the right of the banker to combine the accounts.
There are certain issues which are involved in situations if the credit balance was to set-off by the bank on a joint account against the debit balance on personal account of one party. It's said that such a situation may be possible when the joint account holders' mandate provides the authority to one party to debit the account. But the fact that the joint account holder is not debiting the account but the bank is debiting the account is ignored here. The claim of breach of contract may be available to the other party to the joint account in case the money from the joint account is used for reducing the debit balance of the other party.
The credit institution would not be permitted by the Common Law right of set-off to transfer credit balance from the joint account for satisfaction of the debit balance in the account which is maintained by the other joint account holder. If this right is to be exercised then the same need to be included in clear written terms in the contract between the parties and the bank and then only the bank would have the authority to do so. It is quite a possibility that even though the bank would want to include such terms in the contract, but the customer would not be willing to include such a clause into the contract.
To conclude, it can be said that the rights of set off which results from extinction of debts or other claims may arise:
There are five types of set-offs in general parlance and the application of all the five is there in different circumstances and the ingredients for all of them are also different. In India, as given in the cases of Punjab National Bank v Arunamal Durgadas and Bank of India v Javed Akhtar Hussain, it has been established by the court that firstly, for exercising the right of set-off, mutuality is an essential ingredient and secondly, it must be between the same periods. The right of set-off is in relation to the money and the same may arise from a contract or by operation of law or by mercantile usage.
The research paper discussed the right of set off in detail and also discussed how this right has evolved as per the various case laws that have been talked about in this research paper. The researcher found out that this right does not have any specific statutory provision which can guide the application of the same in India but the English law or the Common Law has principles related to the same and the court relies on various cases that have been decided in the English and the American Courts as well.
The recognition of the right of set off can be dated to the Roman Empire as well and since that period the right has been constantly evolving till date. The right has evolved in form of various decisions of the court. Even though as given in the hypothesis, this right acts as a security for the bank or the seller/manufacturer of the products against their customers or the buyers but there are certain limitations or loopholes within the same as discussed in Chapter three of the research paper.
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