Madras High Court
S. Kumar vs State Bank Of India on 15 September, 2022
C.R.P. Nos.633 & 635 of 2020 & CMP No.3300 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 15.09.2022
CORAM:
THE HONOURABLE MRS.JUSTICE R. HEMALATHA
C.R.P. Nos.633 & 635 of 2020
&
CMP No.3300 of 2020
S. Kumar ... Petitioner in both petitions
Vs.
State Bank of India
SME City Credit Centre
No.5, Jawaharlal Nehru Road,
Ekkattuthangal, Chennai 600 032 ... Respondent in both petitions
Common Prayer: Civil Revision Petitions filed under Article 227 of
Constitution of India against the fair and decretal order dated 07.12.2019
passed in I.A.Nos.4 & 3 of 2019 in O.S. No. 6491 of 2017 on the file of
the XV Assistant City Civil Court, Chennai.
In both petitions :
For Petitioner : Mr. S. Vinoth Kumar
For Respondent : Mr.Nattarajan Gopinath
https://www.mhc.tn.gov.in/judis
C.R.P. Nos.633 & 635 of 2020 & CMP No.3300 of 2020
COMMON ORDER
The present civil revision petitions are filed against the order
dated 07.12.2019 passed in I.A.Nos.4 & 3 of 2019 in O.S. No. 6491 of
2017 on the file of the XV Assistant City Civil Court, Chennai.
2. The revision petitioner is the defendant in O.S.No.6491/2017
on the file of the XV Assistant City Civil Court, Chennai. The respondent
State Bank of India, Ekkattuthangal, Chennai, filed the abovesaid suit
under Order 37 Rule 1 and 2 of the Code of Civil Procedure for recovery
of a sum of Rs. 2,79,279/- together with interest at the rate of 14.80% p.a
(including penal interest @ 2% p.a.) compounded with monthly rests from
the date of plaint till the date of realization.
3. The case of the respondent/plaintiff is that the revision
petitioner/defendant borrowed a sum of Rs.5,36,000/- for purchase of
DZIRE TOUR LDI Maruthi Suzuki car bearing Registration No. TN11 C
1868 and agreed to repay the loan amount together with interest @
https://www.mhc.tn.gov.in/judis
C.R.P. Nos.633 & 635 of 2020 & CMP No.3300 of 2020
13.05% p.a (presently @ 12.80% p.a.) and also agreed to repay the said
amount in 60 Equal Monthly Instalments of Rs.12,210/- . According to
the plaintiff since the revision petitioner/defendant did not pay the
installments regularly, his account was classified as a non-performing
asset. It is the further contention of the respondent/plaintiff that the
defendant made the last remittance on 29.09.2016 towards repayment of
loan amount and thereafter, did not make any the payment till date. The
defendant received the summons under Order 37 Rule 3 CPC. Thereafter,
the defendant filed a petition under Order 37 Rule 3 (5) CPC seeking to
grant leave to defend the suit along with a petition under Order 37 Rule
3(7) r/w Section 5 of the Limitation Act, praying to condone the delay of
205 days in filing the leave to defend petition. The respondent/plaintiff
filed a counter and after full contest, the learned XV Assistant Judge, City
Civil Court, Chennai, dismissed both the applications vide her order
dated 07.12.2019 on the ground that there are no triable issues in the suit.
https://www.mhc.tn.gov.in/judis
C.R.P. Nos.633 & 635 of 2020 & CMP No.3300 of 2020
4. Heard Mr. S. Vinoth Kumar, learned counsel for the revision
petitioner and Mr.Nattarajan Gopinath, learned counsel for the
respondent.
5. The revision petitioner availed a loan of Rs.5,36,000/- for
purchase of a car and agreed to repay the loan amount in 60 Equal
Monthly Installments (EMI) at the rate of Rs.12,210/-. Since he
committed default in payment of EMI, his account became non-
performing asset and thereafter the plaintiff filed a suit against the
defendant in O.S. No.6491/2017 before the City Civil Court under Order
37 Rule 1 and 2 of the Code of Civil Procedure.
6. In the petition filed under Order 37 Rule 3(5) CPC, the
revision petitioner/defendant had contended that there was a settlement
between him and the bank on 26.09.2018 whereby the revision petitioner
paid a sum of Rs.2,10,200/- and agreed to pay the balance amount of
Rs.1,89,000/- on or before 31.12.2018. It is his contention that the
https://www.mhc.tn.gov.in/judis
C.R.P. Nos.633 & 635 of 2020 & CMP No.3300 of 2020
respondent/plaintiff, however, refused to receive the balance amount as
agreed by them. In this regard, the learned counsel appearing for the
revision petitioner drew the attention of this Court to the communication
dated 08.12.2017 sent by State Bank of India, SME City Credit Centre,
Ekkattuthangal, to him wherein it is stated that the revision petitioner's
account has been found to be eligible under "RINN SAMADHAN
SCHEME - II (ONE TIME SETTLEMENT OF NPA & AUCA) and sent
a draft settlement. This was denied by the counsel for the
respondent/plaintiff. The communication dated 08.12.2017 sent by State
Bank of India was marked as Ex.P2 in the trial court. The draft proposal
was marked as Ex.P3. The trial court had clearly observed as follows:
"On perusal of Ex.P3 document it reveals that its only a
draft and no signature or seal of the respondent / plaintiff's
bank is available in this document. Therefore there is no
proof that settlement arrived between parties."
7. The contention of the revision petitioner is that he paid a
sum of Rs.21,200/- as per Ex.P2, subsequent to the filing of the suit by
the respondent/plaintiff and as rightly observed by the trial court, this
https://www.mhc.tn.gov.in/judis
C.R.P. Nos.633 & 635 of 2020 & CMP No.3300 of 2020
contention would not give rise to any triable issues in the main suit. The
trial court has also observed that the revision petitioner/defendant did not
give notice of appearance within 10 days from the date of receipt of suit
summons as enunciated as per provisions of under Order 37 CPC and he
has not also given sufficient reason for the same.
8. In paragraph No. 6 of the judgment, the learned trial judge
had relied on the decision of the Hon'ble Supreme Court in IDBI
Trusteeship Services Ltd. vs. Hubtown Ltd.,, reported in CDJ 2016 SC
1019 , in which it has been held thus:
"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:
a. 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;
https://www.mhc.tn.gov.in/judis
C.R.P. Nos.633 & 635 of 2020 & CMP No.3300 of 2020
b. 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 entitlted to sign
judgment, and the defendant is ordinarily entitled to
unconditional leave to defend;
c. 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;
d. 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
https://www.mhc.tn.gov.in/judis
C.R.P. Nos.633 & 635 of 2020 & CMP No.3300 of 2020
or both can extent to the entire principal sum together with
such interest as the court feels the justice of the case require.
e. 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;
f. 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".
9. The trial court had properly appreciated the entire case on
record and had rightly dismissed the applications in I.A. Nos.3 and 4 of
2019 filed by the revision petitioner/defendant. All the observations
made by the trial court are based on sound principles of law and facts and
therefore, I do not see any reason to interfere with the same. Accordingly,
the Civil Revision Petitions are liable to be dismissed.
https://www.mhc.tn.gov.in/judis
C.R.P. Nos.633 & 635 of 2020 & CMP No.3300 of 2020
10. In the result,
(i) The civil revision petitions are dismissed. No costs.
Consequently connected miscellaneous petition is closed.
(ii) The orders dated 07.12.2019 passed in I.A.Nos.4 & 3 of
2019 in O.S. No. 6491 of 2017 by the XV Assistant City Civil Court,
Chennai, is upheld.
15.09.2022
Index : Yes/No
Internet : Yes/No
Speaking/non speaking
bga
To
1. XV Assistant City Civil Court, Chennai.
2. The Section Officer, VR Section, High Court, Madras.
https://www.mhc.tn.gov.in/judis
C.R.P. Nos.633 & 635 of 2020 & CMP No.3300 of 2020
R.HEMALATHA, J.,
bga
C.R.P. Nos.633 & 635 of 2020
&
CMP No.3300 of 2020
15.09.2022
https://www.mhc.tn.gov.in/judis
