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2014 DIGILAW 4228 (MAD)

K. Ramiah v. K. Subramanian

2014-11-13

K.RAVICHANDRA BAABU

body2014
Judgment The defendant is the petitioner in both the Civil Revision Petitions. The respondent in each of the revision petition is the plaintiff. Both the suits were filed for recovery of money based on promissory notes said to have been executed by the petitioner. The said suits were filed under Order XXXVII Rule 1 CPC for trying the same as summary suits. The petitioner filed applications under Order XXXVII Rule 5 CPC seeking leave of the Court to defend the suit. The trial Court rejected those applications which in turn has resulted in filing of the above Civil Revision Petitions. 2. Mr.P.K.Rajagopal, learned counsel appearing for the petitioner submitted that the petitioner has made out a case before the Court that there are triable issues warranting grant of leave to defend the said suits. It is his contention that the plea raised by the petitioner in his affidavit filed in support of the applications would show that the petitioner has pleaded full discharge in the year 1999 itself and further contended that his signature was forged as if he made some payment on 01.06.2000 apart from raising a ground of limitation that the suit, even otherwise, is time barred. By contending so, the learned counsel submitted that those plea made by the petitioner before the trial Court are undoubtedly a matter for trial and therefore, the trial Court has not justified in rejecting the applications. He further submitted that the trial Court had gone into the merits of the contention raised by the petitioner and rejected the same, which is not at all warranted while considering such an application filed under Order XXXVII Rule 5 CPC. In support of his contention, learned counsel relied on the decisions of this Court in G.Rajarajan Vs. AIR Consumer Financial Services (India) Ltd., reported in 2012 (5) CTC 313 and S.Balasubramanian Vs. V.Govindan reported in 2013 (5) CTC 260 . 3. Per contra, learned counsel appearing for the respondent in both the Civil Revision Petitions submitted that there are no triable issues warranting grant of leave to the petitioner. He further submitted that the trial Court has rightly rejected the application by considering the plea raised by the petitioner on merit. V.Govindan reported in 2013 (5) CTC 260 . 3. Per contra, learned counsel appearing for the respondent in both the Civil Revision Petitions submitted that there are no triable issues warranting grant of leave to the petitioner. He further submitted that the trial Court has rightly rejected the application by considering the plea raised by the petitioner on merit. He also contended that the Court has power under Section 73 of the Indian Evidence Act to verify the signatures found in the disputed document and give a finding and therefore, the Court below cannot be found fault with in doing so. In Support of his submission, learned counsel relied on a decision of this Court in T.G.Balaguru Vs. Ramachandran Pillai. 4. Heard the learned counsel appearing on either side and perused the materials placed before this Court. 5. The petitioner is the defendant in both the suits, which were filed for recovery of money based on promissory notes said to have been executed by the petitioner. A perusal of the affidavit filed in support of the applications seeking leave to defend would show that the petitioner has raised the following plea: a) that he repaid the amount in full along with interest in the year 1999 itself; b) that he did not pay any amount in respect of the promissory note either on 01.06.2000 or any date subsequent to 1999 as he had fully paid the amount due in the year 1999 itself; c) that his signature was forged in the promissory note to create a cause of action; d) that the promissory note is not valid and the suit is time barred; and e) that the defendant is intending to send the suit promissory note for forensic expert opinion. 6. When these pleadings are raised by the petitioner in his applications seeking leave to defend, the Court below has gone into the merits of those pleadings and given a finding against the petitioner in respect of each of his pleadings. I am of the view that such approach of the Court, while considering the application filed under Order XXXVII Rule 3(5), is not in accordance with law. I am of the view that such approach of the Court, while considering the application filed under Order XXXVII Rule 3(5), is not in accordance with law. Whether such approach adopted by the Court below is valid or not, while considering the application under Order XXXVII Rule 3(5), has already been considered by this Court in the earlier decisions rendered in 2012 (5) CTC 313 and 2013 (5) CTC 260 . It has been found at paragraph 6 of 2013 (5) CTC 260 as follows: “6. In my considered view, the approach of the court below while dealing with the application filed under Order XXXVII Rule 3 of Civil Procedure Code is totally erroneous and unsustainable. It has been repeatedly held that court has to only see as to whether the facts narrated in the affidavit filed in support of the application filed under Order XXXVII Rule 3, discloses any triable issues between the parties and if there are triable issues, then leave to defend has to be granted without going into the correctness or otherwise of the facts stated by the petitioner seeking to leave to defend. I have considered the similar issue in a case reported in 2012 (5) CTC 313 G.RAJARAJAN v. AIG CONSUMER FINANCIAL SERVICES (INDIA) LTD. and held at paragraph 19 as follows:- "The Court below ought to have noted that even on merits the petitioner as the defendant is only called upon under Order 37, Rule 3(5), C.P.C. to show or disclose some facts which are triable in nature and he is not even required at that stage to establish those facts. Defending a suit is a valuable right available to a defendant, which cannot be denied or brushed aside in a casual manner. That is why the language of Order 37, Rule 3(5) of C.P.C only contemplates that the Defendant "may disclose such facts as may be deemed sufficient entitle him to defend". Therefore, whether the facts are true in nature and based on those facts whether the Defendant is entitled to succeed in the Suit is purely a matter for trial, which could be possibly gone into only when the Defendant is granted leave to defend such suit. Therefore, whether the facts are true in nature and based on those facts whether the Defendant is entitled to succeed in the Suit is purely a matter for trial, which could be possibly gone into only when the Defendant is granted leave to defend such suit. Therefore, the Application filed under Order 37, Rule 3(5), seeking for grant of leave should be considered by the Courts only by keeping it in mind that a defence, which is a valuable right cannot be taken away in a lighter and casual approach, simply because the Suit is filed under Order 37, Rule 1, CPC. It is also to be noted, at this juncture, that if no such leave is granted, he is thrown out at the threshold and made to suffer a decree forthwith. Therefore, the Courts must show utmost care and caution while considering the Application under Order 37, Rule 3(5), and see as to whether the facts disclosed would lead to a valuable defence with triable issues and of course, such defence is not frivolous and vexatious. " 7. The above decisions were rendered by this Court after considering the various decisions of the Apex Court. No doubt the learned counsel for the respondent to contend that the Court has power under Section 73 of the Indian Evidence Act to compare the signatures found in the disputed document. There is no quarrel about the said proposition. The power is, undoubtedly, vested on the Court under the above said provision. But, the question is at what point of time or at what stage such power has to be exercised by the Court? Here the trial Court has exercised the said power at the prematured stage itself while considering the application filed under Order XXXVII Rule 3(5), which, in effect, amounting to considering the merits of the claim made by the petitioner in the suit itself as if the matter is taken up for trial. 8. Therefore, in my considered view, the above decision relied on by the learned counsel for the respondent is not applicable to the present facts and circumstances of the case and thus the same is liable to be rejected. Considering the above stated facts and circumstances, I find that the petitioner is entitled to succeed in both the Civil Revision Petitions. 9. Considering the above stated facts and circumstances, I find that the petitioner is entitled to succeed in both the Civil Revision Petitions. 9. Accordingly, both the Civil Revision Petitions are allowed and the orders of the I Assistant City Civil Judge, Chennai dated 20.10.2003 in I.A.No.17093 of 2003 in O.S.No.3394 of 2003 and VII Assistant City Civil Judge, Chennai dated 09.10.2003 in I.A.No.16436 of 2003 in O.S.No.3364 of 2003 are set aside. If a decree is passed by the trial Court in both the suits consequent upon the impugned orders in these civil revision petitions, in view of the order passed in these Civil Revision Petitions, the petitioner is entitled to get those decrees set aside by filing application under Order XXXVII Rule 4 CPC before the court below. Since the suits are of the year 2003, the trial Court is directed to take up the suits and dispose of the same on merits and in accordance with law within a period of four months from the date of receipt of a copy of this order. No costs. Consequently, the connected miscellaneous petition is closed.