The written statement: defence, set-off and counter-claim

Drafting, Pleading and Conveyance · Unit II · Topic 6 of 19 · 7 min read

The time limit under Order VIII Rule 1, specific denial and deemed admission, new facts that must be specially pleaded, set-off and counter-claim, and a model written statement answering the money suit in the previous note.

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On this page

1. Time
2. How to answer the plaint
3. Set-off and counter-claim
4. Structure of a written statement
5. Model written statement
How this is examined

Cases checked to exist. Read the judgment before quoting a holding.

Every case cited here has been checked to exist — the citation resolves and names the right parties. The propositions attributed to each case have not been verified line by line against the judgment. Case names link through to the full judgment: read it before quoting a holding in an examination answer, and never carry a proposition from notes into court on trust.

Deny specifically or be taken to admit. The single most important rule for a defendant’s drafter is Order VIII Rule 5 of the CPC: every allegation of fact in the plaint that is not denied specifically or by necessary implication, or stated to be not admitted, is taken as admitted (except against a person under disability). A written statement that says “all allegations are denied” in one line denies nothing.

1. Time

Order VIII Rule 1 requires the defendant to present a written statement within 30 days from service of summons. The court may, for reasons recorded in writing, allow it later, but not beyond 90 days from service. In Kailash v. Nanhku, 2005 INSC 186, (2005) 4 SCC 480, the Supreme Court held that this limit is directory for ordinary suits: in exceptional cases, for reasons recorded, the court may take a written statement on record after 90 days. The same view was taken in Salem Advocate Bar Association v. Union of India, 2005 INSC 324, (2005) 6 SCC 344.

For a commercial suit the rule is stricter. The proviso substituted by the Commercial Courts Act, 2015 allows up to 120 days on payment of costs, after which the defendant forfeits the right. In SCG Contracts India Pvt. Ltd. v. K.S. Chamankar Infrastructure Pvt. Ltd., 2019 INSC 187, (2019) 12 SCC 210, the Court held the 120-day limit mandatory.

2. How to answer the plaint

Specific denial (Rule 3). Deal with each allegation of fact that is not admitted, paragraph by paragraph. General denial is not enough, except as to damages.
No evasive denial (Rule 4). If the plaint says the defendant received Rs. 4,00,000 on 10 January 2025, it is evasive to deny receiving “Rs. 4,00,000 on that date”; the defendant must say what he did receive, if anything. Denying the precise words while leaving the substance untouched is treated as an admission of the substance.
Deemed admission (Rule 5). As above. The court may still require proof of an admitted fact, and may pronounce judgment on admissions where no written statement is filed.
New facts to be specially pleaded (Rule 2). Matters showing the suit is not maintainable, or that the transaction is void or voidable, and grounds of defence that would take the plaintiff by surprise: fraud, limitation, release, payment, performance, illegality.
Documents (Rule 1A). Documents relied on must be listed and produced with the written statement; a document not produced cannot be received later without leave.

3. Set-off and counter-claim

Set-off (Rule 6) is available in a suit for recovery of money where the defendant claims an ascertained sum legally recoverable from the plaintiff, not exceeding the pecuniary limits of the court, and both parties fill the same character in both claims. The written statement must give particulars. Equitable set-off, arising from the same transaction, is allowed even for an unascertained sum.

Counter-claim (Rules 6A to 6G) is wider. The defendant may claim any right or claim against the plaintiff, whether in damages or not, accruing before or after filing of the suit but before the defence is delivered, within the pecuniary limits of the court. It is treated as a plaint, so it must state its own cause of action, valuation and court fee, and the plaintiff may file a written statement to it. It survives even if the suit is stayed, dismissed or withdrawn (Rule 6D).

4. Structure of a written statement

Cause title copied from the plaint, with “Written statement filed by the defendant under Order VIII Rule 1”.
Preliminary objections: jurisdiction, limitation, misjoinder or non-joinder, bar of suit, valuation, want of notice.
Para-wise reply to the plaint.
Additional pleas: the defendant’s version and any new facts under Rule 2.
Set-off or counter-claim, if any, with its own valuation.
Prayer to dismiss the suit with costs.
Signature, verification under Order VI Rule 15, affidavit in support, list of documents.

5. Model written statement

Illustrative template, hypothetical facts (reply to the model plaint in the previous note).

IN THE COURT OF THE ____ CIVIL JUDGE AT DHARWAD O.S. No. 512 of 2026

Sri Anil V. Desai … Plaintiff v. Sri Mahesh S. Kulkarni … Defendant

WRITTEN STATEMENT FILED BY THE DEFENDANT UNDER ORDER VIII RULE 1 OF THE CODE OF CIVIL PROCEDURE, 1908

The defendant states as follows:

The suit is false, vexatious and not maintainable in law or on facts.
The description of parties in the cause title is admitted.
Paragraph 2 of the plaint is admitted.
Paragraph 3 is denied. The defendant did not ask for a loan, and never agreed to pay interest at 9 per cent per annum or at any rate.
As to paragraph 4, it is admitted that Rs. 4,00,000 was credited to the defendant’s account on 10 January 2025. It is denied that it was a loan. The plaintiff paid the sum as an advance under an oral agreement of the same date by which the defendant was to renovate the plaintiff’s shop at Subhash Road, Dharwad for Rs. 6,50,000.
As to paragraph 5, it is admitted that the defendant sent a WhatsApp message on 12 March 2026. It is denied that the message admits a loan. It asked the plaintiff for time to release the balance contract price of Rs. 2,50,000 then due to the defendant. The full message, with a certificate under section 63 of the Bharatiya Sakshya Adhiniyam, 2023, is produced.
Paragraphs 6 and 7 are denied except receipt of the legal notice. The defendant was not bound to reply to a notice making a false claim.
Paragraph 8 is denied. No sum is due from the defendant.
Paragraphs 9 to 12 are denied. No cause of action arose. The claim for interest is baseless.
Additional pleas. The defendant completed the renovation by 30 June 2025. The plaintiff took possession of the renovated shop and has been carrying on business in it. The plaintiff owes the defendant the balance of Rs. 2,50,000.
Counter-claim. The defendant claims Rs. 2,50,000 (Rupees Two Lakh Fifty Thousand only), being the balance of the contract price, with interest at 6 per cent per annum from 1 July 2025. The cause of action for the counter-claim arose on 30 June 2025 when the work was completed and the balance fell due, at Dharwad. The counter-claim is valued at Rs. 2,50,000 and court fee is paid on it. It is within time under the Limitation Act, 1963.

Prayer. The defendant prays that the Court (a) dismiss the suit with costs; and (b) pass a decree on the counter-claim directing the plaintiff to pay the defendant Rs. 2,50,000 with interest at 6 per cent per annum from 1 July 2025 till realisation, and costs.

Place: Dharwad. Date: ____. Sd/- Defendant. Sd/- Advocate for Defendant.

Verification. I, Mahesh S. Kulkarni, the defendant, verify that paragraphs 2 to 8, 10 and 11 are true to my knowledge and paragraphs 1 and 9 are based on legal advice believed to be true. Verified at Dharwad on ____. Sd/- Defendant.

Trap. Paragraph 5 of the model admits the receipt of money but denies its character. That is the right way to plead. A bare denial of receipt, when the bank statement shows the credit, would destroy the defendant’s credibility at trial; a confession and avoidance (admit the fact, plead the explanation) keeps the real dispute in view.

How this is examined

The written statement is usually set as the companion to the plaint exercise in the record (3 marks). Examiners look for para-wise reply, a specific denial of each material allegation, special pleas under Rule 2, and a counter-claim with its own cause of action and valuation. At the viva: the time limit and Kailash; the difference between set-off and counter-claim; what a deemed admission is; and what “evasive denial” means.