Madras High Court
K.Kothandan vs Praful H.Bhandari on 4 February, 2021
C.R.P.(PD)No.147 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 04.02.2021
CORAM:
THE HONOURABLE MRS. JUSTICE V.BHAVANI SUBBAROYAN
C.R.P.(PD)No.147 of 2021
and
C.M.P.No.1357 of 2021
K.Kothandan,
S/o.Late Krishnappa Naicker,
62, Bajanai Koil Street, Perumaleri Village,
Vadakadampadi Post (Via),
Mahabalipuram,
Kancheepuram District.
Pin No.603 104. ... Petitioner
Vs.
1.Praful H.Bhandari,
Flat No.B, PTR Apartment,
No.53, New No.153, Habibullah Road,
T.Nagar, Chennai - 600 017.
2.E.Dhanakodi,
S/o.Late Elumalai,
No.30, Bajanai Koil Street, Perumaleri Village,
Vadakadampadi Post (Via),
Mahabalipuram,
Kancheepuram District.
Pin No.603 104. ...Respondents
1/10
https://www.mhc.tn.gov.in/judis/
C.R.P.(PD)No.147 of 2021
Prayer: Civil Revision Petition filed under Article 227 of the Constitution
of India, against the Judgment and Decree dated 18.12.2020 passed in
I.A.No.3/2019 in O.S.No.3640/2018, on the file of the XVIII Assistant City
Civil Court, Chennai.
For Petitioner : Mr.R.Dhamodaran
ORDER
This matter is taken up through Web hearing.
2. This Civil Revision Petition has been filed against the order made
in I.A.No.3 of 2019 in O.S.No.3640 of 2018 dated 18.2.2020 on the file of
the XVIII Assistant City Civil Court, Chennai, allowing the application
filed by the petitioner/1st defendant, seeking to grant leave to defend the suit
subject to the condition that he shall deposit a sum of Rs.1,68,000/- on or
before 22.01.2020.
3.The brief facts which led to the filing of the present Civil Revision
Petition, are as follows:
The petitioner herein is the 1st defendant in the suit in O.S.No.3640
of 2018 on the file of the XVIII Assistant City Civil Court, Chennai, filed
by the 1st respondent herein/plaintiff for recovery of the suit amount of
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C.R.P.(PD)No.147 of 2021
Rs.1,68,000/- with interest. During the pendency of the suit, the petitioner
herein has moved interim application in I.A.No.3 of 2019 under Order 37
Rule (3)(5) r/w. Section 151 of CPC seeking to grant leave to defend the
above said suit. According to the petitioner, the suit itself is not
maintainable since the alleged loan agreement executed by him is not a
valid and genuine document since it contains many discrepancies such as, it
is stated in the plaint that the petitioner/1st defendant executed the loan
agreement on 16.07.2015, whereas it shows that the petitioner/1st defendant
signed the agreement on 20.08.2015 and such loan agreement has to be
executed only on Rs.20/- non-judicial stamp paper but the present non
judicial stamp paper was purchased four years back and thereby it lacks
limitation and there is a huge space left out in the first page of the loan
agreement and there is no recital found that the 2nd defendant stood as
Guarantor. Therefore, all this would raise the genuinity of the loan
agreement. Therefore, the petitioner/1st defendant sought leave of the Court
to defend the suit. By order dated 18.12.2020 the Court below having
considered the rival submissions, allowed the application with a condition
that the petitioner shall deposit a sum of Rs.1,68,000/- to the credit of the
suit on or before 22.01.2021 failing which the application shall stands
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C.R.P.(PD)No.147 of 2021
dismissed. Aggrieved by the same, the petitioner is before this Court.
4.The learned counsel appearing for the petitioner would contend
that the Court below has not dealt with the issue in a proper perspective and
allowed the application with a condition to deposit a huge amount i.e.,
entire suit amount to the credit of the suit. The learned counsel would point
out that the very purpose to defend the suit would get defeated if the
condition imposed by the Court below is complied with. He would also
contend that the petitioner has specifically pointed out the defects in the
matter of execution of the loan agreement and its genuineness, however, the
Court below though came to the conclusion that there are triable issues and
the same have to be decided in full fledged trial, but erroneously imposed
condition to deposit the huge amount of Rs.1,68,000/- on or before
22.01.2021 which is onerous and liable to be set aside.
5.On perusal of the order passed by the Court below, it appears that
the Court below has accepted the version of the petitioner/1st defendant that
there are triable issues to be decided in full fledged trial, however, having
followed dictum of the Hon'ble Supreme Court while allowing the petition,
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C.R.P.(PD)No.147 of 2021
imposed condition that the petitioner shall deposit a sum of Rs.1,68,000/-.
No doubt it is settled law that if the Court is of the opinion that the case
arises the triable issues, then leave to defend should ordinarily be granted
unconditionally. However, it is pertinent to note that it is also settled law
that in case where the Court entertains the genuine doubt on the question as
to whether the defence is genuine or sham or whether it arises the triable
issues or not, the Court may impose condition while granting leave to
defend. In this case, though the Court below has rightly held that there are
triable issues, but it has taken note of the fact that the petitioner/1 st
defendant though raised issues with regard to genuineness of the loan
agreement alleged to have been executed by the petitioner/1 st defendant, but
the petitioner/1st defendant has nowhere denied the execution of the loan
agreement and admitted his signature in the loan agreement. In such
circumstances, the Court below while allowing the application to defend
the suit, imposed a condition to deposit a sum of Rs.1,68,000/- on or before
22.01.2021. This conclusion of the Court below is in the opinion of this
Court, quite reasonable and does not require any interference. In the cse of
"IDBI Trusteeship Services Limited Vs Hubtown Limited" reported in
"2017(1)SCC 568" the Hon'ble Supreme Court has categorically held as
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C.R.P.(PD)No.147 of 2021
follows:
“18. Accordingly, the principles stated in
paragraph 8 of Mechelec’s case will now stand
superseded, given the amendment of O.XXXVII R.3,
and the binding decision of four judges in
Milkhiram’s case, as follows: If the defendant satisfies
the Court that he has a substantial defence, that is, a
defence that is likely to succeed, the plaintiff is not
entitled to leave to sign judgment, and the defendant is
entitled to unconditional leave to defend the suit;
if the defendant raises triable issues indicating that he
has a fair or reasonable defence, although not a
positively good defence, the plaintiff is not entitled to
sign judgment, and the defendant is ordinarily entitled
to unconditional leave to defend;
even if the defendant raises triable issues, if a doubt is
left with the trial judge about the defendant’s good
faith, or the genuineness of the triable issues, the trial
judge may impose conditions both as to time or mode
of trial, as well as payment into court or furnishing
security. Care must be taken to see that the object of
the provisions to assist expeditious disposal of
commercial causes is not defeated. Care must also be
taken to see that such triable issues are not shut out by
unduly severe orders as to deposit or security;
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C.R.P.(PD)No.147 of 2021
if the Defendant raises a defence which is plausible
but improbable, the trial Judge may impose conditions
as to time or mode of trial, as well as payment into
court, or furnishing security. As such a defence does
not raise triable issues, conditions as to deposit or
security or both can extend to the entire principal sum
together with such interest as the court feels the
justice of the case requires.
if the Defendant has no substantial defence and/or
raises no genuine triable issues, and the court finds
such defence to be frivolous or vexatious, then leave
to defend the suit shall be refused, and the plaintiff is
entitled to judgment forthwith;
if any part of the amount claimed by the plaintiff is
admitted by the defendant to be due from him, leave to
defend the suit, (even if triable issues or a substantial
defence is raised), shall not be granted unless the
amount so admitted to be due is deposited by the
defendant in court".
In the above decision, it has been held that even if the defendant raises
triable issues, if a doubt is left with the trial judge about the defendant’s
good faith, or the genuineness of the triable issues, the trial judge may
impose conditions both as to time or mode of trial, as well as payment into
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C.R.P.(PD)No.147 of 2021
court or furnishing security. Therefore, if the defendant raises a defence
which is plausible but improbable, the trial Judge may impose conditions as
to time or mode of trial, as well as payment into court, or furnishing
security. In the present case, though the Court below comes to the
conclusion that there are triable issues, however, taking note of the fact that
the petitioner/1st defendant nowhere denied the execution of the document,
arises doubt about the petitioner's good faith and the genuineness of the
triable issues. In such circumstances, the Court below has imposed the
condition to deposit a sum of Rs.1,68,000/-.
6.However, as regards the quantum of amount to be deposited is
concerned, this Court is of the view that as rightly submitted by the learned
counsel for the petitioner, it is onerous one, this Court is inclined to reduce
the same to a sum of Rs.50,000/-.
7.Accordingly, this Civil Revision Petition is allowed, modifying the
order of the Court below to the extent that the petitioner/1st defendant shall
deposit a sum of Rs.50,000/- on or before 05.03.2021 and the Court below
shall proceed further and on deposit of such amount, the application to
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C.R.P.(PD)No.147 of 2021
defend the suit, can be taken on record and the trial can be commenced
thereafter in accordance with the procedure established under law. No
costs. Consequently, connected Miscellaneous Petition is closed.
04.02.2021
mtl
Index : Yes/No
Speaking / Non-speaking order
https://www.mhc.tn.gov.in/judis/
C.R.P.(PD)No.147 of 2021
V.BHAVANI SUBBAROYAN. J.
mtl
C.R.P.(PD)No.147 of 2021
and
C.M.P.No.1357 of 2021
04.02.2021
https://www.mhc.tn.gov.in/judis/
