Madras High Court

A.P.Natarajan vs S.Ganesamurthy on 2 December, 2021

                                                                             C.R.P.(PD).No.1086 of 2019



                                   IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                       DATED : 02.12.2021

                                                             CORAM

                                        THE HON'BLE MR.JUSTICE S.S.SUNDAR

                                                  C.R.P.(PD).No.1086 of 2019
                                                             and
                                                    C.M.P.No.7121 of 2019

                     A.P.Natarajan                                                 ... Petitioner

                                                                Vs.


                     S.Ganesamurthy                                                ... Respondent


                                  Civil Revision Petition is filed under Article 227 of the Constitution

                     of India, to set aside the Judgment and Decree of the VII Assistant City

                     Civil Court, Chennai dated 04.09.2018 in I.A.No.15499 of 2017 in

                     O.S.No.4180 of 2017.



                                               For Petitioner    : Mr.P.Sunil Prakash

                                               For Respondent : Mr.K.Hari Krishnan



                                                             ORDER

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C.R.P.(PD).No.1086 of 2019

This Civil Revision Petition is directed against the Judgment and

Decree of the VII Assistant City Civil Court, Chennai dated 04.09.2018

in I.A.No.15499 of 2017 in O.S.No.4180 of 2017.

2. The revision petitioner is the plaintiff in the suit in O.S.No.4180

of 2017. The suit was filed for recovery of a sum of Rs.4,69,650/- with

further interest and cost. The money claimed was based on the cheque

said to have been drawn by the defendant in favour of the plaintiff.

3. Before filing the written statement, the defendant filed a petition

in I.A.No.15499 of 2017 seeking leave to defend the case in O.S.No.4180

of 2017 under Order 37 Rule 3 of CPC. The said application was allowed

by the Trial Court. Aggrieved by the same, the above Civil Revision

Petition has been filed by the plaintiff in the suit.

4. The learned counsel appearing for the petitioner submitted that

the respondent / defendant has no legal defence and that based on the

averments which are illusory the Trial Court has accepted the contention

of the defendant that there are triable issues.

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C.R.P.(PD).No.1086 of 2019

5. It is pointed out by the learned counsel for the petitioner that the

Lower Court has not even stated the so called triable issues raised in the

application filed by the defendant. Further, the learned counsel for the

petitioner submitted that the Trial Court has passed an unconditional

order granting leave to defend without imposing any condition to deposit

the admitted amount.

6. This Court is of the view that the Trial Court has gone through

the averments made in the affidavit filed in support of the petition filed by

the respondent / defendant.

7. It is admitted that the revision petitioner has earlier issued a

notice under Section 138 of the Negotiable Instruments Act. However, the

proceedings under 138 of N.I. Act was not followed up and the suit came

to be filed in O.S.No.4179 of 2017 before the City Civil Court.

8. It is the case of the respondent that the cheque was handed over

to the plaintiff in relation to chit transaction and that the defendant has

valid defence.

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C.R.P.(PD).No.1086 of 2019

9. There was further allegation to the effect that the plaintiff is a

member of an association and has filed another suit through his associate

against the respondent which was numbered as O.S.No.4179 of 2017.

The defence appears to be that the cheque issued by the respondent in

relation to a chit transaction is utilised by the plaintiff after settlement of

dues.

10. The nature of allegations would certainly relevant if the

defendant is able to prove before the Trial Court. In such circumstances,

this Court is unable to point out any error in the order of the Lower Court

allowing the petition in I.A.No.15499 of 2017.

11. In view of the forgoing reasons, this Court is unable to entertain

this Civil Revision Petition. Hence, this Civil Revision Petition is

dismissed. No costs. Consequently, connected miscellaneous petition is

closed.

12. It is now submitted by the learned counsel for the revision

petitioner that the respondent may be directed to deposit atleast the

amount for which the suit is laid to the credit of the proceedings before https://www.mhc.tn.gov.in/judis

C.R.P.(PD).No.1086 of 2019

the Lower Court. He relies upon Order 37 Rule 3 of CPC, which reads as

follows :

Rule 3 Order XXXVII of Code of Civil Procedure 1908

(1) In a suit to which this Order applies, the plaintiff shall, together with the summons under rule 2, serve on the defendant a copy of the plaint and annexures thereto and the defendant may, at any time within ten days of such service, enter an appearance either in person or by pleader and, in either case, he shall file in Court an a address for service of notices on him.

(2) Unless otherwise ordered, all summonses, notices and other judicial processes, required to be served on the defendant, shall be deemed to have been duly served on him if they are left at the address given by him for such service.

(3) On the day of entering the appearance, notice of such appearance shall be given by the defendant to the plaintiff's pleader, or, if tile plaintiff sues in person, to the plaintiff himself, either by notice delivered at or sent by a pre-paid letter directed to the address of the plaintiff's pleader or of the plaintiff, as the case may be.

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C.R.P.(PD).No.1086 of 2019

(4) if the defendant enters an appearance, the plaintiff shall thereafter serve on the defendant a summons for judgment in Form No. 4A in Appendix B or such other Form as may be prescribed from time to time, returnable not less than ten days from the date of service supported by an affidavit verifying the cause of action and the amount claimed and stating that in his belief there is no defence to the suit.

(5) The defendant may, at any time within ten days from the service of such summons for judgment, by affidavit or otherwise disclosing such facts as may be deemed sufficient to entitle him to defend, apply on such summons for leave to defend such suit, and leave to defend may be granted to him unconditionally or upon such terms as may appear to the Court or Judge to be just:

Provided that leave to defend shall not be refused unless the Court is satisfied that the facts disclosed by the defendant do not indicate that he has a substantial defence to raise or that the defence intended to be put up by the defendant is frivolous vexatious:

Provided further that, where a part of the amount claimed by the plaintiff is admitted by the defendant to be due from him, leave to defend the suit shall not be granted unless the

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C.R.P.(PD).No.1086 of 2019

amount so admitted to be due is deposited by the defendant in Court.

(6) At the hearing of such summons for judgment,-

(a) if the defendant has not applied for leave to defend, or if such application has been made and is refused, the plaintiff shall be entitled to judgment forthwith; or

(b) if the defendant is permitted to defend as to the whole or any part of the claim, the Court or Judge may direct him to give such security and within such time as may be fixed by the Court or Judge and that, on failure to give such security within the time specified by the Court or Judge or to carry out such other directions as may have been given by the Court or Judge, the plaintiff shall be entitled to judgment forthwith.

(7) The Court or Judge may, for sufficient cause shown by the defendant, excuse the delay of the defendant in entering an appearance or in applying for leave to defend the suit.

13. The said provision only enables the Court to put the defendant

on terms if the defendant admits any portion of the claim made by the

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C.R.P.(PD).No.1086 of 2019

plaintiff. Normally, when a petition is filed and leave to defendant is

granted by the Court, it is not necessary that a condition should also be

imposed. Only in a case when the Court is satisfied for sufficient reasons,

the defendant can be put on terms. This Court, having regard to the facts

of this case, is not inclined to put the defendant on any of the terms.

02.12.2021 raja Index : yes/no Internet : yes/no Speaking Order/Non-Speaking Order

To The VII Assistant City Civil Court, Chennai

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