40Rights of mortgagee in respect of set-off and cross-action

#### 40 Rights of mortgagee in respect of set-off and cross-action 40 Rights of mortgagee in respect of set-off and cross-action > Nothing in Part 2 or Part 3 of this Act or in the [Moratorium Act 1930](/view/pdf/asmade/act-1930-48), as amended by subsequent Acts, shall prevent any mortgagee who is sued by a mortgagor from pleading or setting up in any such action or suit by any plea of set-off or cross-action or by counter-claim any claim or demand which under the provisions of the said enactments, or any of them, he could not sue for except with the leave of the court or any claim or demand in respect of any covenant, agreement, or stipulation which is avoided by section twenty-five of the said Act as so amended— > > Provided that such mortgagee shall not be entitled under the provisions of this section to recover in such action or suit any amount by which such claim or demand is found to exceed the debt or demand proved by the plaintiff.