Madras High Court
O.P.Vijayalakshmi vs M.Gomathi on 1 February, 2021
CRP.NPD.No.3874 of 2015
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 01.02.2021
CORAM
THE HON'BLE MR. JUSTICE G.K.ILANTHIRAIYAN
CRP.NPD.No.3874 of 2015
and
MP.No.1 of 2015 and CMP.No.5612 of 2020
O.P.Vijayalakshmi ... Petitioner
Vs.
M.Gomathi ... Respondent
PRAYER: The Civil Revision Petition is filed under Section 115 of the
Civil Procedure Code, praying set aside the order in I.A.No.55 of 2015 in
O.S.No.1022 of 2015 on the file of the XVIII Additional City Civil Judge,
Chennai and grant unconditional leave to defend the suit.
For Petitioner : Mr.M.Devaraj
For Respondent : Mr.C.Vigneswaran
ORDER
This Civil Revision Petition is directed as against the fair and decretal
order passed in I.A.No.55 of 2015 in O.S.No.1022 of 2015 dated
15.06.2015 on the file of the XVIII Additional City Civil Judge, Chennai,
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CRP.NPD.No.3874 of 2015
thereby, dismissing the petition filed by the petitioner to grant leave to
defend the suit.
2. The respondent is the plaintiff. She filed the said suit for recovery
of money, on the strength of the pro-note as well as the cheques issued by
the petitioner herein. On receipt of the summons, the petitioner filed a
petition to grant leave to defend the suit filed by the respondent herein.
According to the respondent, she is a co-employee of the petitioner herein at
Government Ophthalmic Hospital, Egmore, Chennai. The respondent
retired from service in the month of September 2009. During her service,
the petitioner used to borrow the loan to meet out her urgent commitments
and thereafter, used to repay the same with interest.
3. Accordingly, the petitioner borrowed a sum of Rs.11 lakhs on
various occasions viz., a sum of Rs.2 lakhs on 28.08.2013 and issued four
cheques for the said sum. When the cheques were about to be presented for
collection, the petitioner endorsed that she requested further time till
December 2015 for repayment of the entire amount. Immediately, the
respondent filed a suit in the month of February 2015. Whereas, the
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CRP.NPD.No.3874 of 2015
petitioner filed a petition to leave to defend the suit, on the ground that the
respondent is known to her and used to lend money to various persons.
Accordingly, the petitioner borrowed a sum of Rs.2,50,000/- from the
respondent in the year 2008. Thereafter, she had been paying a sum of
Rs.22,000/- every month regularly by cash and also cheque maintained in
the Vijaya Bank, Egmore Branch, Chennai.
4. After repaying the entire loan amount borrowed by her. She filed
the suit, on the strength of undertaking letter given by the petitioner herein.
While borrowing the loan, the petitioner signed various papers in favour of
the respondent herein. Even according to the respondent, the petitioner
borrowed only a sum of Rs.2 lakhs on 28.08.2013, for which she also issued
four cheques. Now the respondent arrived at Rs.11 lakhs and filed a suit.
Therefore, the petitioner has got valid defense to defend the suit.
5. On a perusal of the records, it is seen that the document dated
16.10.2012 was issued by the petitioner herein, undertaking to repay the
amount of Rs.1,50,000/- on 20.11.2012. On a perusal of the four cheques
issued by the petitioner for a sum of Rs.50,000/- each signed by the
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CRP.NPD.No.3874 of 2015
petitioner in English. Further, by the letter dated 10.03.2014, undertaking to
repay the amount, which is signed by her in Tamil. Seeing all the signatures
in all the documents are completely differs and also the document dated
09.01.2015 issued by the petitioner herein for a sum of Rs.11 lakhs.
6. On a perusal of the said letter, she requested further time to repay
the amount of Rs.11 lakhs till December 2015. In the said document the
signatures differs. Further, as per undertaking letter dated 09.01.2015, the
petitioner sought time till December 2015. Whereas, the respondent filed a
suit even in the month of February 2015 itself. Therefore, there are so many
triable issues and the petitioner has got valid defends to defend the suit.
7. The learned counsel for the respondent raised only one ground that
the Civil Revision Petition is not maintainable when the suit itself was
decreed after dismissing the petition to leave to defend, by the judgment and
decree dated 15.06.2015. In this regard, the learned counsel for the
petitioner cited the judgment reported in 2009(2) SCC 432 (Wada Arun
Asbestos Private Limited -vs- Gujarat Water Supply & Sewerage Board),
in which, this Court held as follows:-
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CRP.NPD.No.3874 of 2015
“15. Where a conditional leave is granted and the
conditions therefor are not complied with, a judgment in favour
of the plaintiff can be passed. It is not in dispute that the first
appeal was maintainable. Where a decree is appealed from, any
error, defect or irregularity in any order affecting the decision
of the case may be set forth as a ground of objection in the
memorandum of appeal as envisaged under Section 105 of the
Code of Civil Procedure.
16. It is in the aforementioned backdrop, the question as to
whether a revision petition was maintainable against an order
granting conditional leave must be considered. We will proceed
on the basis that an order imposing a conditional leave to
defend the suit was a jurisdictional question and, thus, a
revision application would be maintainable as has been held by
various High Courts, notable amongst them are New Ashapuri
Coop. Housing Society Ltd. v. Arvindkumar Manilal Patel [AIR
1975 Guj 76], Fateh Lal v. Sunder Lal [AIR 1980 Raj 220],
Modi Ram v. Sugan Bai [AIR 2005 Raj 12] and A.K. Velan v.
Narayanan and Co. (P) Ltd. [AIR 1972 Mad 118].
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CRP.NPD.No.3874 of 2015
17. But if a right of appeal from the decree is conceded to a
defendant, in our opinion, he cannot be denied a right to
challenge an order which was subject to revision in his
memorandum of appeal filed from the decree ultimately passed.
22. A statutory right conferred on a litigant cannot ordinarily be
taken away. A civil revision application might have been
maintainable as against the order dated 27-11-2002 granting
conditional leave. The said remedy was also available where
leave to defend a suit is refused. Leave to defend a suit, as
noticed hereinbefore, should ordinarily be granted. It was,
therefore, permissible for the defendant to raise the said
contention in the appeal although it had asked for time to
comply with the conditions.
26. Keeping in view the facts and circumstances of this case, we
are of the opinion that it is not a fit case where the impugned
judgment of the High Court should be interfered with. This
appeal is dismissed accordingly. However, in the facts and
circumstances of this case, there shall be no order as to costs.”
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CRP.NPD.No.3874 of 2015
8. The Hon'ble Supreme Court of India held that the Civil Revision is
maintainable as against the order passed in the leave to defend the
application.
9. In view of the above discussion, this Civil Revision Petition is
allowed and the order passed in I.A.No.55 of 2015 in O.S.No.1022 of 2015
dated 15.06.2015 is set aside. The petitioner is at liberty to file a written
statement and proceed with the trial. The trial Court is directed to complete
the trial within a period of nine months from the date of receipt of a copy of
this order. Consequently, the connected Miscellaneous Petitions are closed.
No costs.
01.02.2021
Speaking/Non-speaking order
Index : Yes/No
Internet : Yes/No
kv
To
The XVIII Additional City Civil Judge, Chennai
https://www.mhc.tn.gov.in/judis/
CRP.NPD.No.3874 of 2015
G.K.ILANTHIRAIYAN,J.
Kv
CRP.NPD.No.3874 of 2015
https://www.mhc.tn.gov.in/judis/
CRP.NPD.No.3874 of 2015
01.02.2021
https://www.mhc.tn.gov.in/judis/
