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2007 DIGILAW 2426 (MAD)

N. Sumathi v. Kanyalal Balani & Others

2007-08-02

M.CHOCKALINGAM

body2007
Judgment :- A challenge is made to an order of dismissal made by the learned XIV Assistant Judge, City Civil Court, Chennai made in I.A.No. 19612 of 2005, an application seeking leave to defend the suit in O.S.No. 1213 of 2005, in this civil revision petition. .2. The court heard the learned counsel on either side. As could be seen from the available materials and in particular the order under challenge, it was a suit filed by the first respondent herein/plaintiff against the defendants five in number, seeking decree for a sum of Rs.60000/ and odd, alleging that a promissory note was executed by the defendants 1 to 4 on 111. 2002 for the borrowal of Rs.50000/-from the plaintiff; that .the fifth defendant executed a letter of guarantee on 211. 2002; that many a demand made, but no payment was made and hence, a notice was issued, but there was no reply and under these circumstances, the under chapter suit was laid. 3. The fifth defendant, on appearance, filed I.A.No.19612 of 2005, seeking leave to defend with the allegations, stating that he has nothing to do with the plaintiff and he has not executed a letter of guarantee and he did not know the transactions between the plaintiff and the defendants 1 to 4; that the letter was actually given to one Jayakumar and Vinodkumar, who were not parties to the suit and under these circumstances, triable issues are there and he has to put forth his defence before the court. The respondents 2 to 5/defendants 1 to 4 set ex parte. The lower court, after hearing the submissions of the petitioner/D-5 and the first respondent/Plaintiff and looking into the materials available, has dismissed the application and hence, this civil revision petition has been brought forth. 4. The learned counsel for the revision petitioner would submit that in the instant case, leave should have granted unconditionally. Even the case of the plaintiff was that on 111. 2002, the defendant 1 to 4 borrowed Rs.50000/-from the plaintiff and the letter of guarantee was not executed on the very day; that it was a matter of surprise to note that it was executed on 211. 2002, but this letter was never executed by the fifth defendant to the plaintiff; and that all other defendants were set ex parte cannot be a reason for passing the decree against the petitioner. 2002, but this letter was never executed by the fifth defendant to the plaintiff; and that all other defendants were set ex parte cannot be a reason for passing the decree against the petitioner. Added further the learned counsel that the lower court has incorporated the letter and a reading of the letter would clearly indicate that it is not a guarantee letter as one envisaged under the Contract Law and under these circumstances, triable issues are there and the lower court should have given an opportunity to him. .5. The court heard the learned counsel for the respondents on the above contentions. The learned counsel would submit that in the instant case, execution of guarantee letter was admitted by the fifth defendant; that a reading of the letter would clearly indicate that it is a guarantee letter; that apart from that there was notice issued, but no reply is emanated from the fifth defendant, who is the petitioner herein; and that this would indicate that even if his plea is allowed, then vexatious defend would follow. The learned counsel, relying on the decision of the Supreme Court reported in 2007 (2) SCC 275 (Ajay Sansal Vs. Anup Mehta and Others), would submit that in a case where decree has been passed by the lower court, an appeal has to be preferred and it cannot be challenged by way of civil revision petition before this court and hence, this civil revision petition has got to be dismissed. 6. After careful consideration of the submissions made and the looking into the materials available, the court is of the considered opinion that this civil revision petition has got to be allowed, setting aside the order of the lower court. The case of the plaintiff, in short, as could be seen from the materials, is that the defendant 1 to 4 borrowed Rs.50000/- on 111. 2002 and they executed a suit promissory note, for which the fifth defendant executed a guarantee letter on 211. 2002 and hence, the fifth defendant was liable. The case of the plaintiff, in short, as could be seen from the materials, is that the defendant 1 to 4 borrowed Rs.50000/- on 111. 2002 and they executed a suit promissory note, for which the fifth defendant executed a guarantee letter on 211. 2002 and hence, the fifth defendant was liable. According to the revision petitioner/fifth defendant, he never executed the guarantee letter, but the letter, according to the plaintiff, was found to be executed on subsequent date and thus, it was one prepared for the purpose of the case and in the instant case, there was no transaction between the parties and the letter now placed before the court was not at all a guarantee letter. 7. After looking into the materials available, the court is of the considered opinion that it is a fit case where leave has got to be granted for more reasons than one. According to the plaintiff, borrowal was made by the defendants 1 to 4 on 111. 2002, but no letter was executed by the fifth defendant. According to the plaintiff, the fifth defendant has executed the guarantee letter only on 211. 2002, a week thereafter. Even a reading of the letter, which was incorporated in the order of the lower court, would indicate that it was not the letter executed by the fifth defendant to the plaintiff, but it was executed to the third parties, who have acted as financial agents and who arranged for the loan. Under these circumstances, naturally, it is a fit case where triable issues are available and they have got to be framed and it is a fit case where it must be tried. The contention of the learned counsel for the respondent/plaintiff that a regular appeal should have been preferred and not by way of this civil revision petition to challenge the order of the lower court cannot be countenanced in law for the simple reason that the decision of the Apex Court can be applied to a case where the decree has been passed. In the instant case, once it is brought to the notice of the court that originally this order has been passed refusing the relief and if leave is not granted, all further procedures would automatically come to an end, the court is of the considered opinion that the order passed by the lower court has got to be made undone only by upsetting the same. Hence, the order of the lower court is set aside and leave is ground unconditionally. The lower court is directed to give an opportunity to the fifth defendant to file the written statement and proceed in accordance with law as one required under the circumstances. Both the parties are directed to appear before the lower court on 30.08.2007. Accordingly, this civil revision petition is disposed of. No. costs. Consequently, the connected MP is closed.