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2010 DIGILAW 1073 (MAD)

The Himalaya Drug Co. Pvt. Ltd. , Represented by its Partner, Bangalore v. T. Thangaraj

2010-03-17

M.JAICHANDREN

body2010
Judgment :- 1. This Civil Revision Petition has been filed against the order, dated 25.11.2009, made in I.A.No.18003 of 2009, in O.S.No.4973 of 2009, on the file of the VII Additional Judge, City Civil Court, Chennai. 2. It has been stated that the interlocutory application, in I.A.No.18003 of 2009, had been filed, under Order XXXVII Rule 5 of the Code of Civil Procedure, 1908. The respondent herein had filed the interlocutory application praying for leave to defend in the suit, in O.S.No.4973 of 2009. 3. The petitioner in the present civil revision petition had filed the suit, in O.S.No.4973 of 2009, praying for a judgment and decree directing the defendant to pay a sum of Rs.5,05,125/- (Rupees Five Lakhs Five Thousand and One Hundred and Twenty Five only), including the interest thereon, at the rate of 18% per annum, on the principal amount of Rs.1,24,415.12 (Rupees One Lakh Twenty Four Thousand Four and Hundred and Fifteen and Twelve Paise only). 4. It has been stated that the petitioner in the present civil revision petition is a reputed pharmaceutical firm, engaged in the business of manufacturing and marketing various products, including Ayurvedic medicaments. The petitioner had appointed franchisees to sell its products. In the course of the business, the plaintiff had made an offer to the defendant, who is the respondent in the civil revision petition, to open an exclusive show room for the products manufactured by the plaintiff firm. Accordingly, the respondent had been appointed as a franchisee of the petitioner firm. 5. During the course of the commercial dealings, the petitioner had supplied its products, along with the invoices, and the defendant had issued cheques against the supply. Thus, a sum of Rs.1,70,395.08 became due and payable by the respondent. In order to discharge the said dues, the respondent had issued a cheque bearing No.001556, dated 26.7.2006, drawn on the Indian Overseas Bank. However, the cheque issued by the respondent had been dishonoured due to the stop payment instructions issued to the concerned Bank, by the respondent. In such circumstances, the petitioner firm had filed the suit, in O.S.No.4973 of 2009, on the file of the VII Additional Judge, City Civil Court, Chennai. 6. The respondent, as the defendant in the said suit, had filed an interlocutory application praying for grant of leave, in I.A.No.18003 of 2009, under Order XXXVII of the Code of Civil Procedure, 1908. In such circumstances, the petitioner firm had filed the suit, in O.S.No.4973 of 2009, on the file of the VII Additional Judge, City Civil Court, Chennai. 6. The respondent, as the defendant in the said suit, had filed an interlocutory application praying for grant of leave, in I.A.No.18003 of 2009, under Order XXXVII of the Code of Civil Procedure, 1908. The VII Additional Judge, City Civil Court, Chennai, by his order, dated 25.11.2009, had allowed the interlocutory application. Against the said order, the plaintiff in the suit, in O.S.No.4973 of 2009, has filed the present civil revision petition before this court, under Article 227 of the Constitution of India. 7. The main contention of the learned counsel for the petitioner is that no reasons have been given by the learned VII Additional Judge, City Civil Court, Chennai, while passing the impugned order, dated 25.11.2009, granting the leave to defend, as prayed for by the respondent. It has been further stated that the learned Judge had granted the leave to defend, to the respondent, without asking him to furnish sufficient security for the amount claimed by the petitioner. 8. The learned counsel had also stated that the affidavit filed by the respondent in the interlocutory application does not disclose triable issues. Once the respondent had admitted that he had given the bill of exchange he would be liable for the amount claimed by the petitioner, as it had been dishonoured. Unless, the respondent had provided sufficient security for the amount liable to be paid by the respondent to the petitioner, the learned VII Additional Judge, City Civil Court, Chennai, ought not to have granted the leave, as prayed for by the respondent. 9. The learned counsel appearing on behalf of the respondent had stated that the suit is not maintainable for the reason that no proper authorization had been obtained for the filing of the suit by a partner of the petitioner firm. He had also submitted that the learned VII Additional Judge, City Civil Court, Chennai, does not have the pecuniary jurisdiction to hear the suit, as the said suit ought to have been filed before the appropriate Subordinate Court, at Chennai. He had also stated that the proper Court fee had not been paid while instituting the suit. He had also submitted that the learned VII Additional Judge, City Civil Court, Chennai, does not have the pecuniary jurisdiction to hear the suit, as the said suit ought to have been filed before the appropriate Subordinate Court, at Chennai. He had also stated that the proper Court fee had not been paid while instituting the suit. Further, it has not been shown as to how the amount claimed by the plaintiff firm in the said suit had been calculated. 10. In view of the averments made on behalf of the parties concerned and on a perusal of the records available, this Court is of the considered view that it would be appropriate to direct the respondent in the present civil revision petition, who is the defendant in the suit, in O.S.No.4973 of 2009, to deposit a sum of Rs.1,70,000/-before the VII Additional City Civil Court, Chennai, as security towards the amount claimed by the petitioner firm, which is the plaintiff in the suit, within a period of four weeks from the date of receipt of a copy of this order, as a pre-condition for the grant of leave to defend against the claims made in the suit. On the failure of the respondent to deposit the said amount, as directed by this Court, the learned VII Additional Judge, City Civil Court, Chennai, shall decree the suit, in O.S.No.4973 of 2009, as prayed for therein. On the respondent complying with the above directions, the learned VII Additional Judge, City Civil Court, Chennai, shall list the suit for trial, on merits, in the usual course. The Civil Revision Petition is ordered accordingly. No costs. Consequently, connected miscellaneous petition is closed.