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2016 DIGILAW 1951 (MAD)

K. C. Somasundaram v. T. G. Prabhakar

2016-06-21

M.DURAISWAMY

body2016
ORDER : Challenging the fair and final order passed in I.A. No. 1267 of 2005 in O.S. No. 6537 of 2004 on the file of XIII Assistant Judge, City Civil Court, Chennai, the defendants have filed the above Civil Revision Petition. 2. The plaintiff filed the suit in O.S. No. 6537 of 2004, under Order 37, Rule 1 of CPC, for recovery of a sum of Rs.4,83,750/- together with interest. 3. According to the plaintiff, the first defendant entered into a sale agreement with him for the purchase of the property and the plaintiff paid a sum of Rs.2,00,000/- as advance. Further, it is the case of the plaintiff that the first defendant also received a further advance of Rs.1,00,000/- on the same day from him. According to the plaintiff, subsequently, on 3.12.2001, defendants 2 and 3 gave an undertaking that they would settle the amount of Rs.3,00,000/- within 15 days time. Since the defendants have not paid the amount, the plaintiff filed the suit under Order 37, Rule 1 of CPC. 4. After the receipt of summons the defendants filed an application in I.A. No. 1267 of 2005 in O.S. No. 6537 of 2004 to grant leave to defend the suit. 5. In the affidavit filed in support of the application in I.A. No. 1267 of 2005, the defendants have stated that the sale agreement was entered into between the plaintiff and the 1st defendant and the defendants 2 and 3 are total strangers to the sale agreement and therefore, the plaintiff cannot file a suit as against the defendants 2 and 3. Further, in paragraph No.5 of the affidavit, the defendants have stated that the alleged letter of undertaking was obtained by the plaintiff with the aid of police and that pursuant to the complaint made by the plaintiff, the defendants filed Anticipatory Bail applications, wherein they have stated about the letter of undertaking obtained by the plaintiff by force and with the assistance of the police. The Anticipatory Bail applications were marked as Exs.P1 and P2. The defendants have also stated that the suit filed by the plaintiff is barred by limitation for the reason that the suit agreement was executed on 30.10.2000 and the suit was filed on 6.11.2004. 6. The plaintiff filed his counter before the Trial Court and contested the application. 7. The Anticipatory Bail applications were marked as Exs.P1 and P2. The defendants have also stated that the suit filed by the plaintiff is barred by limitation for the reason that the suit agreement was executed on 30.10.2000 and the suit was filed on 6.11.2004. 6. The plaintiff filed his counter before the Trial Court and contested the application. 7. The Trial Court, after taking into consideration the case of both the parties, dismissed the application and decreed the suit. 8. On a perusal of the order passed by the Trial Court, it could be seen that the Trial Court has not taken into consideration the documents filed by the plaintiff as Exs.P1 and P2. Even without considering those documents, the Trial Court came to the conclusion that the plaintiff is entitled to get a decree as prayed for in the suit. When the defendants have taken a specific plea that letters of undertaking were obtained by force and with the assistance of police, the Trial Court should have taken into consideration those two documents and given a finding. The agreement dated 30.10.2000 and the execution of the letter of undertaking dated 3.12.2001 are matter for evidence, more so, when the defendants are disputing the execution of the letter of undertaking. 9. In these circumstances, I am of the considered view that the Trial Court should have given an opportunity to the defendants to contest the suit on merits. 10. In view of the above, the fair and decreetal order passed in I.A. No. 1267 of 2005 are set aside and the application in I.A. No. 1267 of 2005 stands allowed. Consequently, the judgment and decree passed in O.S. No. 6537 of 2004 stands set aside. The defendants are permitted to contest the suit on merits. Since the suit is of the year 2004, I direct the XIII Assistant Judge, City Civil Court, Chennai to dispose of the suit in O.S. No. 6537 of 2004 on merits and in accordance with law, within a period of four months from the date of receipt of a copy of this order. It is open to the parties to agitate all the issues before the Trial Court at the time of trial, uninfluenced by any of the observations made in this Civil Revision Petition. With these observations, the Civil Revision petition is allowed. No costs.