Madras High CourtV.K.K.Nair vs Mr.D.Shittal Kumar on 22 July, 2004Equivalent citations: 2004 A I H C 4834, (2004) 4 MAD LW 579, (2005) 2 BANKCAS 383, (2004) 5 CTC 724 (MAD)Author:V.KanagarajBench:V.KanagarajIN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 22/07/2004.

CORAM

THE HONOURABLE MR.JUSTICE V.KANAGARAJ

CIVIL REVISION PETITION NPD. No.1755 OF 2003
AND
C.M.P.No.18430 OF 2003

V.K.K.Nair                                             ... Petitioner

-Vs-

Mr.D.Shittal Kumar                                     ... Respondent


        Civil Revision Petition filed underSection 115of the Code  of  Civil
Procedure for the relief as stated therein.


!For petitioner :  Mr.G.Dhesinghu

^For respondent :  Mr.A.Venkatesan


:ORDERThe  above  Civil  Revision  Petition is directed against the fair and
decretal order dated 31.7.2002 made in I.A.No.6778 of 2002 in O.S.No.6 037  of
2001 by the Court of VIII Assistant Judge, City Civil Court, Chennai.2.   Tracing  the  history  of the above Civil Revision Petition, what
comes to be known is that the respondent herein has filed the  above  suit  in
O.S.No.6037  of  2001  for  recovery  of  a  sum  of Rs.37,500/= together with
interest at the rate of 30% p.a.  and for costs; that the  petitioner  herein,
who  is  the  second  defendant  in the above suit, has filed an Interlocutory
Application in I.A.No.6778 of 2002 under Order  37  Rule  3(5)C.P.Cseeking
leave  to  defend  the  suit;  that  the  lower  Court has dismissed the above
application on 31.7.2002 on the ground that the petitioner/defendant  has  not
raised any  triable  issue in the suit.  It is only testifying the validity of
the said fair and decretal order, the petitioner/defendant has come forward to
file the above civil revision petition on certain grounds as brought forth  in
the grounds of revision.3.   During  arguments, the learned counsel appearing on behalf of the
petitioner, besides giving a picture as to what was the  petition  before  the
lower  Court,  the defence taken by the other side and the decision arrived at
by the Court below, would also cite the following judgments:1.  2001(3) CTC 420 (V.SAMUEL vs.   THABAK  FINANCE  CORPORATION,  REP.BY  ITS
PARTNER S.MADANCHAND AND JHABAK)2.  1998(II)  CTC  382  (SUNIL ENTERPRISES AND ANOTHER vs.  SBI COMMERCIAL AND
INTERNATIONAL BANK LTD.)3.  (1976) 4 SCC 687 (M/s.MECHELEC ENGINEERS & MANUFACTURERS vs.  M/s.   BASIC
EQUIPMENT CORPORATION)4.  AIR 1958 SC 321 (SANTHOSH KUMAR vs.  BHAI MOOL SINGH)4.   So  far as the first judgment cited above is concerned, a learned
single Judge of this Court has held:"...  having regard to the stand taken  by  the  defendant  that  he  had  not
received  any  money, the disputes can be raised only on framing proper issues
and taking evidence.  The Court below was in error in deciding  the  issue  at
the  inception  itself  as if the defendant did not raise any proper issue and
that there is no triable issue."5.  In the second judgment cited  above,  the  Honourable  Apex  Court
would  sum-up the propositions laid down in the judgments (3) and (4) referred
to above as follows:"(a)If the defendant satisfies the court that he has a  good  defence  to  the
claim on merits, the defendant is entitled to unconditional leave to defend.(b)  If  the defendant raises a triable issue indicating that he has a fair or
bona fide or reasonable defence, although not a  possibly  good  defence,  the
defendant is entitled to unconditional leave to defend.(c)If  the  defendant  discloses  such  facts  as  may be deemed sufficient to
entitle him to defend, that is, if the affidavit discloses that at  the  trial
he  may  be able to establish a defence to the plaintiffs claim, the court may
impose conditions at the time of granting leave to  defend  -  the  conditions
being as to time of trial or mode of trial but not as to payment into court or
furnishing security.(d)  If the defendant has no defence, or if the defence is sham or illusory or
practically moonshine, the defendant is not entitled to leave defend.(e) If the defendant has no defence or the defence  is  illusory  or  sham  or
practically  moonshine,  the court may show mercy to the defendant by enabling
him to try t prove a defence but  at  the  same  time  protect  the  plaintiff
imposing  the  condition  that the amount claimed should be paid into court or
otherwise secured."In view of  the  extraction  of  the  above  propositions  laid  down  by  the
Honourable  Apex  Court  in  the  second  judgment  cited  above  and  in full
consideration of the principles embodied in the judgments cited  (3)  and  (4)
above, extracting  from  the Judgments No.3 and 4 also is unnecessary.  Citing
the above judgments, the learned counsel for the petitioner would pray to  set
aside the order of the Court below.6.   On  the  contrary, the learned counsel appearing on behalf of the
respondent would only adhere to the lower Court order and  extracting  certain
relevant  portions therefrom, would conclude that simply to deny the execution
of the pronote, the petitioner has come forward to file  such  an  application
and  no  triable  issue  has been raised by the petitioner and hence the Court
below has rightly rejected his claim.  On such arguments, the learned  counsel
for the respondent would pray to dismiss the above civil revision petition.7.   In  consideration  of  the  facts  pleaded,  having regard to the
materials placed on record and upon hearing the learned counsel for  both,  so
far  as the first judgment rendered by the learned single Judge of this Court,
cited No.(1) above is concerned, generally it is averred that 'disputes can be
raised only on frami ng proper issues and taking evidence'.  This is common in
all other matters wherein generally trial is the answer.  But, so far as Order
37 Rule 3(5)CPCis concerned, the position of law is different wherein unless
the defendant is in a position to show that he has got triable issues in  such
money  suits  and  applies  on  such summons for leave to defend such suit, he
would not be permitted to defend the suit and unless the  defendant  is  in  a
position  to  satisfy  the Court that he has a substantial defence to raise or
that the defence intended to be put up is raised, it is not incumbent  on  the
part of  the  Court to grant leave.  In such event, even if an attempt is made
on the part of the defendant to show the substantial defence and if  the  same
is  frivolous  or vexatious, no leave could be granted, as per proviso No.1 to
the above Section.  According to Proviso No.(2) of the same Section, 'where  a
part of the amount claimed by the plaintiff is admitted by the defendant to be
due for him, leave to defend the suit shall not be granted unless the admitted
amount is deposited by the defendant in the Court'.8.   While  the  position  of law is such, it cannot be so easily said
that generally in all cases of such nature, the defendant must  be  given  the
opportunity to  defend and the same cannot be denied preliminarily.  It cannot
also be said that the disputes can be raised only on framing proper issues and
taking evidence, in which event, almost the trial procedure will be  over  and
the  Courts  will  be  left  with  the choice of only rendering the judgments.
Therefore, this proposition laid down by the  learned  single  Judge  of  this
Court  cannot be held either valid or capable of being followed and this Court
is not in a position to accept this proposition of law.9.  So far as the second judgment covering up  the  third  and  fourth
judgments  also  is  concerned,  to put it in a nutshell, the defendant should
satisfy the Court that he has a good defence on  merits,  that  the  defendant
should  raise  triable  issues  indicating  that  he  has a fair, bonafide and
reasonable defence and if it is not there  and  if  the  defence  is  sham  or
illusory,  the  defendant  is not entitled to defend in which event, the Court
may on ground of mercy enable the defendant to try to prove  the  defence  but
protect the plaintiff imposing the condition that the amount claimed should be
paid into court or otherwise secured.10.   So  far as the case in hand is concerned, the trial Court is not
at all able to find any valid defence or triable issue in  the  whole  of  the
case put up by the petitioner/defendant to consider to grant leave adhering to
the  facts  and  circumstances  of  the case as it could be seen from the fair
order of the lower Court.  Therefore, within the parameters set by law and the
propositions of  the  Honourable  Apex  Court,  the  trial  Court  has  fairly
concluded  that  the  defendant  has  nothing to put forth in his defence as a
result of which the trial Court  has  ultimately  dismissed  the  application.
Therefore,  this Court does not find any valid or tangible reason to interfere
with such a well considered and merited fair and decretal order passed by  the
trial  Court  in rejecting the claim of the petitioner/defendant and hence the
following order:In result,(i) the above civil revision petition does not merit acceptance and  the  same
is liable to be dismissed and is dismissed accordingly.(ii)  The  fair and decretal order dated 31.7.2002 made in I.A.No.6778 of 2002
in O.S.No.6037 of 2001 by the Court of VIII Assistant Judge, City Civil Court,
Chennai is hereby confirmed.However, in the circumstances of the case, there shall be no order  as
to costs.Consequently, C.M.P.No.18430 of 2003 is also dismissed.Index   :  Yes
Internet:  Yes

Rao


To

The Registrar,
City Civil Court,
Chennai.