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2007 DIGILAW 1790 (MAD)

M. Pushparaj v. K. Kanthiah & Another

2007-06-15

M.CHOCKALINGAM

body2007
Judgment :- An order of dismissal of I.A.No.2070 of 2005 in O.S.No.1924 of 2004 on the file of the 13th Assistant City Civil Court, Chennai seeking leave to defend the suit in O.S.No.1924 of 2004 under the summary procedure is challenged before this Court. 2. The Court heard the learned counsel on either side. 3. It was the suit for recovery of money alleging that the defendant/revision petitioner borrowed a sum of Rs.1 lakh on 1. 2002 and executed a suit promissory note. Though many demands were made for re-payment of principal and interest, the defendant has not complied with the same and hence the suit was filed. On service of summons, the revision petitioner/defendant made an application seeking leave to defend the suit alleging that there was no borrowal or execution of promissory note, as found in the plaint. The promissory note was forgery one and triable issues are there. So, it has to be disposed of on merits. The application was contested by the plaintiff/first respondent. The order of dismissal by the said Court is the subject matter of challenge in this revision. 4. Advancing his argument, learned counsel for the revision petitioner would submit that the lower Court has dismissed the application erroneously. In the affidavit filed in the support of the petition it has been stated that the promissory note based on which the suit filed by the plaintiff is a forged one and the defendant has not executed any promissory note and hence triable issues are there. But the lower Court has not considered the same. On the contrary, the trial Court has relied on the averments made in the affidavit that admittedly, there was a borrowal made by the revision petitioner in the year 1998 for Rs.40,000/- and has taken the same as an admission made by the defendant erroneously and apart from he has not taken any steps to compare the signature and the lower Court has dismissed the application which is untenable. 5. Heard the learned counsel for the respondent on the above contentions. 6. Learned counsel for the respondent would submit that after dismissal of the application, suit was decreed and execution petition was filed for recovery by way of arrest of the revision petitioner. 5. Heard the learned counsel for the respondent on the above contentions. 6. Learned counsel for the respondent would submit that after dismissal of the application, suit was decreed and execution petition was filed for recovery by way of arrest of the revision petitioner. Pending suit, he has appeared before the Court in the execution proceedings on condition that the revision petitioner should deposit a sum of Rs.1 lakh in the execution proceedings and thereafter the defendant filed CRP.No.747 of 2006 and the same was also disposed of directing him to pay Rs.50,000/- within the stipulated time. Under such circumstances, the above Civil Revision Petition has been brought forth. 7. In answering to the above for the revision petitioner that both CRPs are filed at the same time and he is having sufficient merit in the Civil Revision Petition to set aside the order passed in his application seeking leave to defend. 8. After careful consideration of rival submissions made, this Court is of the considered view that the order of the lower court has to be set aside. 9. It was the suit for recovery of money on the strength of promissory note specifically alleging that there is a borrowal of Rs.1 lakh and executed a promissory note on 1. 2002. It was specifically averred in the affidavit filed by the revision petitioner seeking leave to defend that there was a borrowal in the year 1998 for a sum of Rs.40,000/-, out of which, Rs.30,000/- was paid and Rs.10,000/-, he was ready to pay the said amount and he has given the sale deed of the property purchased in his wifes name as security and the property is now in the custody of the respondent. The lower court has pointed out that the revision petitioner/defendant has not taken any step to prove that the promissory note is a forged one. Added further, the signature has not been compared and hence triable issues are there. After affording opportunity, the Court should have come to an conclusion. Under the circumstances, the order of the lower court has got to be set aside. 10. Added further, the signature has not been compared and hence triable issues are there. After affording opportunity, the Court should have come to an conclusion. Under the circumstances, the order of the lower court has got to be set aside. 10. Taking in to consideration the fact that execution petition is filed and subsequently a Civil Revision Petition was filed before this Court and the order came to be passed, it is a fit case where the revision petitioner/defendant should be directed to make the payment of Rs.50,000/- within a period of four weeks from the date of receipt of a copy of this order, before the lower court and on compliance of the same, the revision petitioner/defendant must be give an opportunity to file the written statement for prosecuting the case. After filing the written statement, the lower court is directed to frame necessary issues and dispose of the suit, in accordance with law. 11. With the above observation, the Civil Revision Petition is disposed of. No costs. Consequently, MP.No.1 of 2007 is closed.