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2004 DIGILAW 954 (MAD)

M. Venugopal v. G. Manohar

2004-07-23

P.SATHASIVAM

body2004
Judgment :- Defendant in O.S.No. 7187 of 1993 on the file of XI Assistant Judge, City Civil Court, Madras, against the dismissal of his petition in I.A.No. 11452 of 1995 filed under Order 37, Rule 3 (4) of the Code of Civil Procedure to defend the suit unconditionally, has filed the above Revision before this Court. 2. The plaintiff/respondent herein filed the said suit for recovery of a sum of Rs.38,000/-with interest on Rs.20,000/- at 30 per cent per annum based on a promissory note dated 24-9-1990 under Order 37, Rule 1 C.P.C. The defendant/petitioner herein filed I.A.No.11452 of 95 under Order 37, Rule 3 (4) C.P.C. praying for leave to defend the said suit. In the affidavit filed in support of the application, it is stated that he handed over papers with signature to one financial broker by name Chandra Banu who used to get money from one Bansilal. He denied the suit claim and according to him, at no point of time he borrowed any amount from the plaintiff based on the suit promissory note. No consideration ever passed under the suit promissory note much less the amount that has been specified in the suit. The blank promissory note handed over to the said Chandra Banu has been filled up and manipulated. With these averments, he prayed for leave to defend the suit. The said application was resisted by the plaintiff/respondent by filing counter. It is stated that all the averments are false. The defence raised is not a real and false, imaginary and moonshine. No issue could be raised over such false imaginary and moonshine defence. The learned XI Assistant Judge, after considering the rival contentions, rejected the case of the petitioner and dismissed the said petition; hence the present Revision. 3. Heard Mr. V. Sairam, learned counsel for the petitioner and Mr. H. Kishore, learned counsel for the Respondent. 4. The only point for consideration in this Revision is, whether the defendant/petitioner herein has made out a case to defend the suit filed by the plaintiff? 5. It is settled law that if defendant raises a triable issue indicating that he has a fair or bona fide or reasonable defence, he is entitled to unconditional leave to defend. 4. The only point for consideration in this Revision is, whether the defendant/petitioner herein has made out a case to defend the suit filed by the plaintiff? 5. It is settled law that if defendant raises a triable issue indicating that he has a fair or bona fide or reasonable defence, he is entitled to unconditional leave to defend. Before going into the defence raised by the petitioner/defendant, it is worthwhile to refer the principles laid down by the Supreme Court in Mechalec Engineers and Manufacturers v. Basis Equipment Corporation, reported in AIR 1977 Supreme Court 577 with regard to Order 37, Rule 3 (2) C.P.C.: (para 8) "8. In Sm. Kiranmoyee Dassi v. Dr. J. Chatterjee, (1945) 49 Cal WN 246 at p.253, Das, J., after a comprehensive review of authorities on the subject, stated the principles applicable to cases covered by Order 37, C.P.C. in the form of the following propositions (at p.253): "(a) If the defendant satisfies the Court that he has a good defence to the claim on its merits the plaintiff is not entitled to leave to sign judgment and 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 positively good defence the plaintiff is not entitled to sign judgment and 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 to say, although the affidavit does not positively and immediately make it clear that he had a defence, yet, shews such a state of facts as leads to the inference that at the trial of the action he may be able to establish a defence to the plaintiff's claim the plaintiff is not entitled to judgment and the defendant is entitled to leave to defend but in such a case the Court may in its discretion impose conditions as to the time or mode of trial but not as to payment into Court or furnishing security. (d) If the defendant has no defence or the defence set up is illusory or sham or practically moonshine then ordinarily the plaintiff is entitled to leave to sign judgment and the defendant is not entitled to leave to defend. (d) If the defendant has no defence or the defence set up is illusory or sham or practically moonshine then ordinarily the plaintiff is entitled to leave to sign judgment and the defendant is not entitled to leave to defend. (e) If the defendant has no defence or the defence is illusory or sham or practically moonshine then although ordinarily the plaintiff is entitled to leave to sign judgment, the Court may protect the plaintiff by only allowing the defence to proceed if the amount claimed is paid into Court or otherwise secured and give leave to the defendant on such condition, and thereby show mercy to the defendant by enabling him to try to prove a defence." 6. In the light of the above principles, let me consider whether the defendant has made out any triable issues or has valid defence to contest the suit. In the affidavit filed in support of the said application, it is specifically stated by the petitioner that he had left a blank promissory note with one financier broker by name Chandra Banu who used to get loan amount for him from various persons, including one Bansilal. It is also stated that no consideration ever passed under the suit promissory note and the blank promissory note, handed over to the said Chandra Banu, has been filled up and manipulated for the same. Though the petitioner had sent reply to the suit notice in which all the details as claimed were not stated, however, it is the categorical claim of the petitioner that he left blank pronote with Chandra Banu for arranging loan amount to him. In other words, though the petitioner has not specified the name of the said Chandra Banu in the said reply, it is seen that he has stated the fact of leaving certain blank pronotes. As rightly contended by the learned counsel for the petitioner, only on seeing the plaint averments and copy of the suit promissory note, it would be possible for the opposite party, namely, the defendant to put-forth his defence and nobody can expect that the reply to the suit notice should contain all the minor and minute details. As rightly contended by the learned counsel for the petitioner, only on seeing the plaint averments and copy of the suit promissory note, it would be possible for the opposite party, namely, the defendant to put-forth his defence and nobody can expect that the reply to the suit notice should contain all the minor and minute details. On going through the claim made by the petitioner in the reply notice as well as the affidavit filed in support of the above petition to leave to defend, I am satisfied that the defendant has raised a triable issue indicating that he has a fair and reasonable defence although not a good defence and is entitled to unconditional leave to defend. I am also satisfied that the said defence cannot be termed as illusory or sham or moonshine. By applying the principles formulated by the Honourable Supreme Court in the decision referred to above, and in the light of the statement made in the reply notice as well as in the affidavit filed in support of the said application, I am satisfied that the Court below ought to have given an opportunity to him to establish his defence by granting unconditional leave. The principles to be followed while granting leave to defend have been considered by me in Vasantha Devi, K. v. Mahesh Kumar Rathi, reported in 2004 (3) CTC 321 wherein in the light of the principles enunciated by the Supreme Court in AIR 1977 SC 577 (cited supra), after holding that the defence set up by the defendant cannot be termed as illusory or sham or moonshine, disentitling him to leave to defend the suit, I set aside the impugned order therein. The said decision of mine is applicable to the case on hand. 7. In the light of what is stated above, I hold that the petitioner/defendant has raised a triable issue indicating that he has a fair and reasonable defence; accordingly he is entitled to unconditional leave to defend. The Court below committed an error in dismissing his application to leave to defend. Accordingly, the order dated 17-9-1996 made in I.A.No. 11452 of 1995 in O.S.No. 7187 of 1993 is set aside and the Civil Revision Petition is allowed. No costs. C.M.P.No. 13099/98 is closed. The Court below committed an error in dismissing his application to leave to defend. Accordingly, the order dated 17-9-1996 made in I.A.No. 11452 of 1995 in O.S.No. 7187 of 1993 is set aside and the Civil Revision Petition is allowed. No costs. C.M.P.No. 13099/98 is closed. Inasmuch as the suit is of the year 1993, the petitioner/defendant is granted two months' time from to-day to file written statement and the learned trial Judge is directed to dispose of the main suit within a period of six months thereafter, after affording opportunity to both sides.