Research › Browse › Judgment

Madhya Pradesh High Court · body

1992 DIGILAW 687 (MP)

Chowaram v. Rikhabchand

1992-11-02

K.L.ISSRANI

body1992
JUDGMENT The present revision petition is filed by the applicant-defendant against the order dated 7.4.1992, passed by the First Additional District Judge, Durg in Civil Suit No. 148 of 1992, granting conditional leave to defend under Order 37, Rule· 3(5) of the Code of Civil Procedure. According to the applicant, the plaintiff-non-applicant is a money-lender and the applicant is only a cultivator owning 18 acres of land. According to the plaintiff, a loan of Rs. 32,000/- was advanced to the defendant-applicant on interest at the rate of 1.5% percent per month and the signatures of the defendant were taken on Sarkatbahi in support of the same. An amount of Rs. 8,720/- only was paid by the defendant, and, therefore, a suit for recovery of the balance. amount of Rs. 40,000/- including the principal amount and interest was filed by the plaintiff against the applicant-defendant. According to the defendant, no cash was given to him. His signatures were obtained on Sarkatbahi for interest claimed for previous dealings. The applicant was granted leave to defend the suit on the condition that he deposited Rs.23,280/- in the Court within 30 days and that the plaintiff can withdraw the said amount on furnishing reasonable solvent security to the satisfaction of the Court on the condition to return the same with interest at the rate of 9% per annum in case the suit of the non-applicant plaintiff fails. The only submission of the learned counsel for the applicant is that the applicant is a poor cultivator. The condition of such deposit ought not have been imposed on him. He is prepared to furnish security in lieu of it. In support of his contention, the learned counsel has relied on Milkhiram (India) P. Ltd. v. Chamanlal Bros. AIR 1965 SC 1698 ), M/s Machalec Engineers & Manufacturers v. M/s. Basic Equipment Corporation ( AIR 1977 SC 577 ) and Pratap Singh v. Devendra ( 1984 JLJ 500 ). Learned counsel for the non-applicant plaintiff submits that the defence of the applicant defendant is false. On 29.4.1988, after taking the cash amount of Rs. 32,000/-, the defendant has not only put his signatures on Sarkatbahi but has also written to have received the same in his own hand-writing. He has filed a photo-copy of the Sarkatbahi containing the writings and signatures of the defendant applicant along with other vouchers. On 29.4.1988, after taking the cash amount of Rs. 32,000/-, the defendant has not only put his signatures on Sarkatbahi but has also written to have received the same in his own hand-writing. He has filed a photo-copy of the Sarkatbahi containing the writings and signatures of the defendant applicant along with other vouchers. According to him, no interference in the revision petition filed by the applicant-defendant is called for and it is liable to be dismissed. The applicant defendant has not denied the writing and signatures on the Sarkatbahi before this Court also. His submission is that the plaintiff non-applicant is a money-lender. He has not complied with the provisions of the Money Lender's Act. The Court is entitled to re-open the account in such a case, for which he relies on a decision of this Court in Pratap Singh v. Devendra (supra). At this stage of limited scope for revision petition, such a question cannot be called into. Therefore, this ruling is of no help to the applicant. The other ruling cited by the applicant i.e. Milkhiram (India) P. Ltd. v. Chamanlal Bros. (supra) is also of no help to him. In that case, it has been held that the grant of leave to defend is discretionary and cannot be interfered with in revision unless order is void of illegal. In the third ruling cited by the applicant himself i.e. M/s Mechalec Engineers & Manufacturers v. M/s. Basic Equipment Corporation (Supra), the leave to defend granted unconditionally was set aside by the High Court in revision petition and a condition was imposed by the High Court. In the third ruling cited by the applicant himself i.e. M/s Mechalec Engineers & Manufacturers v. M/s. Basic Equipment Corporation (Supra), the leave to defend granted unconditionally was set aside by the High Court in revision petition and a condition was imposed by the High Court. Hon'ble the Supreme Court set aside the order of the High Court only on the ground that looking to the facts and circumstances of a particular case, the High Court should not have interfered while exercising jurisdiction in revision petition under section 115, C.P.C. Learned counsel for the non-applicant plaintiff placed reliance on a latest decision of Hon'ble the Supreme Court in Raj Duggal v. Ramesh Kumar Bansal ( AIR 1990 SC 2218 ), in which leave to defend was declined by the Sub-Judge as well as the High Court but was granted by Hon'ble the Apex Court on the condition that the amount of Rs.20,000/- deposited in the said case be paid to and retained by the respondent-plaintiff subject to the condition that if ultimately the respondent plaintiff fails in his suit, he shall be liable to restitute the said sum of Rs. 20,000/- to the appellant-defendant with interest thereon at the rate of 9% per annum. I also rely on this latest decision of Hon'ble the Supreme Court because in the present case also, the applicant-defendant has admitted his writings and signatures on the Sarakbahi. In such a case, the contents of the documents will also be presumed to have been admitted by the applicant unless otherwise rebutted by him in the trial Court. Merely because the non-applicant is a money-lender and the compliance of the provisions of the Money Lenders' Act is subject to the scrutiny by the trial Court and that the applicant is a poor agriculturist, cannot be the subject-matter for interference within the provisions of section 115, C.P.C., as laid down in the case reported in AIR 1977 SC 577 above itself. Consequently, this revision petition fails and is hereby dismissed. There shall, however, be no order as to costs.