Madras High Court
B.Rajendran vs K.Murugesan (Deceased) on 15 June, 2022
S.A. No. 42 of 2013
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 15.06.2022
CORAM
THE HONOURABLE MRS. JUSTICE T.V.THAMILSELVI
S.A. No.42 of 2013
and
M.P.No. 1 of 2013
B.Rajendran,
S/o. Bangaru ... Appellant
Versus
K.Murugesan (deceased)
2. Veilukanthammal,
3. Nagalingam
4. Saraswathi
5. Kalaiselvi
6. Udhayakumar
(R2 to R6 are brought on record as LRs of
deceased sole respondent vide order
dt. 27.11.2018 made in C.M.P. No.9093 to
9095 of 2016) ... Respondents
1/9
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S.A. No. 42 of 2013
Prayer:- Second Appeal has been filed under Section 100 C.P.C., against
the judgment and decree in A.S.No.55 of 2011 dated 09.01.2012 on the file
of V Addl. City Civil Judge at Chenni in O.S.No.480 of 2008 dated
22.08.2008 on the file of V Asst. City Civil Court at Chennai.
For Appellant : Mr.G.Appavu
For Respondents : Mr. K.G.Vasudevan for R2 to R6
R1 - died
JUDGEMENT
The appellant herein is the defendant in the suit filed in O.S.No.480
of 2008 under Order 37 Rule 3 of C.P.C. on the file of V Asst. City Civil
Court at Chennai by the respondent/plaintiff herein for recovery of money
on pronote.
2. The filing of suit on pronote claimed under summary suit
proceedings is admitted by both parties and for the sake of convenience, the
parties are referred as per the ranking in the suit.
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S.A. No. 42 of 2013
3. In that suit, the defendant has filed an application under Order 37
Rule 3 of C.P.C. seeking to grant unconditional leave to defend the case,
submitting that from one Ponnusamy, a loan amount was borrowed by the
by the plaintiff through the defendant. Subsequently, the amount was
discharged to the said Ponnusamy, but as a mediator, the plaintiff, who
retained the pronote and other cheque leaves, and he has manipulated the
same and filed a suit. Hence, he filed an application seeking to grant
unconditional leave to defend the case. But, the learned trial judge
dismissed the application concluding that the defence sought to be raised
cannot be said to be substantial, as a result, the leave to defend was refused
and the suit was decreed as prayed for. Aggrieved over that, the defendant
has filed an appeal before the appellate forum in A.S.No. 55 of 2011 along
with C.M.P. No. 1288 of 2011 challenging the order passed by the trial
judge. On considering the both sides submissions, the learned appellate
judge has held that from the beginning, the defendant seeking permission to
adduce evidence in the summary suit proceedings and as per the defence
sought to be raised by the defendant, it is found that none of defence raised
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S.A. No. 42 of 2013
by him is tenable in law and the defendant also failed to show that he is
having documentary evidence to prove his case, and the claim has not been
filed by way of affidavit in the trial court. Accordingly, the appeal was
dismissed confirming the judgment passed by the trial court. Aggrieved
over that, the appellant has filed the present Second Appeal framing the
following substantial question of law :-
1) Is not the discharge of debt is triable issue under the
provisions of C.P.C. entitling to get leave to defend the
suit?
2) Is not he real lender of money is proper and necessary
party to the suit when raised in L.P. Petition and the
plaintiff/Respondent had not taken positive steps to
implead?
3) Whether the courts below are justified in raising the
presumption under Sec.118 of N.I. Act, when the
document is not pronote strictly under Sec. 4 of N.I.Act?
4) Is not the pre-suit notice is mandatory on promissory
notes and in granting cost of the suit?
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S.A. No. 42 of 2013
4. The learned counsel appearing for the defendant would submit that
immediately after filing of the suit, he has filed an application under Order
37 Rule 3 of C.P.C. seeking to grant unconditional leave to defend the case
for the reason that already the loan amount was discharged to one
Ponnusamy, who is a real money lender and the plaintiff is the mediator, he
mediated between the parties and to discharge the said amount he is having
sufficient documentary evidence. Hence, he has filed an application. But,
the trial court as well as first appellate court without giving an opportunity
to defend his case, have dismissed his application. The defendant also
produced a letter, which contains the recitals of discharge of loan before this
court and based upon that, he prayed to remand the matter back to the trial
court to prove his defence of discharge of loan through documents.
5. The learned counsel for plaintiff raised objections contending that
before the trial court, the defendant has not produced any documentary
evidence to prove that the loan was already discharged. On considering the
same, the trial judge as well as first appellate court rejected his claim and for
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S.A. No. 42 of 2013
the first time he has submitted before this court that he is having
documentary evidence. Hence, he prayed to dismiss the Second Appeal.
6. Heard and considered rival submissions made by learned counsel
for appellant as well as respondents and perused the records.
7. On perusal of records, it reveals that before the trial court, the
defendant has not enclosed any documentary evidence to show that the loan
was already was discharged, but at the time of argument, he has produced a
letter showing the recitals of discharge of loan to one Ponnusamy and the
date mentioned in the letter was also prior to the date of filing suit. As per
the dictum laid down by the Hon'ble Supreme Court in the case of
M/s.Mechelec Engineers and Manufacturers vs. M/s. Basic Equipment
Corporation reported in 1976 (4) SCC 687, enumerated certain prepositions
as to when an unconditional leave can be granted or the defendant can be
put on terms. The said prepositions, as enumerated by the Hon'ble Supreme
Court in the aforesaid decision, may be stated as follows :-
a) If the defendant satisfies the court that he has a good
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S.A. No. 42 of 2013
defence to the claim on its merits, the plaintiff is not entitled
to leave to sign judgment and the defendant is entitled to
unconditional leave to defend.
b) If the defendant raises a triable issue indicating that he has
a fair or bonafide or reasonable defence although not a
positively good defence, the plaintiff is not entitled to sign
judgment and the defendant is entitled to unconditional leave
to defend.
Therefore, if the defendant satisfy the court that he has good defence, and
not enabling the defendant to indicate defence, which merely give a raise to
the triable issue, but the defendant should satisfy the court that he has
substantial defence to rise. Case in hand, the defendant submitted that he is
having piece of documentary evidence to establish the discharge of loan and
to prove his defence. Hence, he has filed the said application seeking to
grant unconditional leave to defend. When the defendant is having
sufficient material evidence to defend the case, an opportunity may be
given, otherwise, his right will be defeated. But, the court below failed to
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S.A. No. 42 of 2013
appreciate the legal aspect and erroneously rejected the claim of the
defendant. Hence, this Second Appeal is liable to be allowed.
8. In the result, this Second Appeal is allowed and the judgment and
decree passed by the trial court as well as first appellate court are set aside
and the matter is remanded back to the trial court. Accordingly, the petition
filed by the defendant under Order 37 Rule 3 seeking to grant unconditional
leave to defend the case is allowed and the trial court is directed to give
opportunity to the defendant to rise substantial defence. However, the Trial
Court is directed to dispose the suit within a period of three months as per
the manner known to law from the date of receipt of copy of this order. No
costs. Consequently, the connected M.P. stands closed.
15.06.2022
rpp
To
V Addl. Judge,
City Civil Court,
Chennai.
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S.A. No. 42 of 2013
T.V.THAMILSELVI, J.
rpp
S.A. No. 42 of 2013
15.06.2022
https://www.mhc.tn.gov.in/judis
