Madras High Court
D.Pratish vs M/S.Prerna Finance on 6 August, 2024
C.R.P.(PD).No.2943 of 2024
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 06.08.2024
CORAM :
THE HON'BLE MR.JUSTICE V.LAKSHMINARAYANAN
C.R.P.(PD).No.2943 of 2024
and C.M.P.No.15755 of 2024
D.Pratish,
also called, Pratish Vedhapuddi .. Petitioner
Versus
M/s.Prerna Finance
Rep. by its Propreitrix Prerna Bafna, .. Respondent
Prayer : Civil Revision Petition filed under Article 227 of the Constitution
of India to set aside the order and decreetal order made in I.A.No.3 of 2023
in O.S.No.7786 of 2022 dated 29.01.2024 on the file of the XXIII
Additional Judge, City Civil Court, Allikulam at Chennai and thereby, allow
the Civil Revision Petition.
For Petitioner : Mr.R.Thiagarajan,
for Mr.S.Saravana Kumar
For Respondents : Mr.S.R.Rajagopal, Senior Counsel,
Mr.T.Srikanth
ORDER
This Civil Revision Petition is at the instance of the
petitioner/defendant. The respondent/plaintiff instituted O.S.No.7786 of
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2022 on the file of the XXIII Additional City Civil Court, Allikulam at
Chennai.
2. The suit is for recovery of a sum of Rs.64,99,160/- together with
the interest at the rate of 24% per annum. The suit has been presented on
the foot of three promissory notes said to have been executed by the
petitioner/defendant in favour of the respondent/plaintiff. The
respondent/plaintiff also pleaded that in discharge of the said amounts, the
respondent/plaintiff had transferred part payments on several days
commencing from 09.02.2013 and concluding with 10.01.2018. He had
given the list of payments that had been made by the respondent/plaintiff as
a schedule to the plaint.
3. Being an under chapter suit, on the petitioner/defendant entering
appearance, he gave notice of appearance, for which, summons for
judgment had also been filed by the respondent/plaintiff. Immediately, the
petitioner/defendant took out an application for leave to defend. The
application, seeking for leave to defend, was numbered in I.A.No.3 of 2023
and after receipt of a counter, the said application came to be dismissed by
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the learned Trial Judge on 29.01.2024, against which, the present Revision
Case is filed.
4. Heard Mr.R.Thiagarajan, learned Counsel for Mr.S.Saravana
Kumar, learned Counsel for the petitioner and Mr.S.R.Rajagopal, learned
Senior Counsel for Mr.T.Srikanth, learned Counsel for the respondent.
5. Mr.R.Thiagarajan, learned Counsel for the petitioner/defendant
would submit as follows:-
(i) This is a commercial dispute and therefore, the regular Civil
Courts will not have jurisdiction;
(ii) The respondent/plaintiff, having acted as a money lender, is
covered under the Money Lenders Act and the interest that has been charged
by him is exorbitant way above the limits that have been fixed by the said
Act.
(iii) The payment was made to one Chandra Kumar Bafna and the
petitioner/defendant does not even know who the respondent/plaintiff is.
All the payments that were made by the petitioner/defendant were only to
Chandra Kumar Bafna and after having received the amount, since he has
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not duly accounted for the same, a Police complaint was also lodged on
23.01.2023 with the jurisdictional Police Station. This, he has substantiated
by filing the document as Ex.P1 before the Court.
6. The argument of Mr.R.Thiagarajan is that at all points of time, the
petitioner/defendant was under impression that Chandra Kumar Bafna had
advanced his funds and not that of the respondent/plaintiff. On this basis,
he would plead that he is entitled for unconditional leave to defend. In
addition, he would state that the petitioner/defendant is entitled for leave to
defend as the respondent/plaintiff has not issued a notice prior to the
presentation of the plaint.
7. Per contra, Mr.S.R.Rajagopal, learned Senior Counsel for the
respondent/plaintiff would contend that this is not a commercial transaction
within the meaning of Section 2(1)(c) of the Commercial Courts Act, 2015
(Act 4 of 2016). He would state that this is a simple transaction of lending
of money from one person to another which is not covered under the said
Act. He would further draw my attention to the affidavit that has been filed
in support of the leave to defend application, in particular, in paragraph
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No.16 to state that the petitioner/defendant had admitted the borrowal from
the respondent/plaintiff and his only plea was that as the reconciliation of
the accounts not being done properly and had it been done, then, the
petitioner/defendant would not be liable to pay the amounts demanded in
the plaint.
8. This itself would show, according to Mr.S.R.Rajagopal, that the
petitioner/defendant has conceded to the case of the respondent/plaintiff and
hence, his defence is moonshine and therefore, the order of the learned Trial
Judge does not require interference. He would also rely upon the judgment
of the Supreme Court in Ajay Bansal Vs. Anup Mehta and Ors., (2007) 2
SCC 275 to state that only an appeal is maintainable and not a revision
challenging the leave to defend. This, according to him, is because by
virtue of the order passed under Order XXXVII Rule 2 of the Code of Civil
Procedure, the Suit came to be decreed on the very same day and hence,
only an appeal against the decree is maintainable and not a revision.
9. I have carefully considered the arguments on either side and have
gone through the records.
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10. Since the objection on maintainability of the revision has been
raised by Mr.S.R.Rajagopal, I have to address that issue first. In Ajay
Bansal's case (cited supra), the Supreme Court had held that when there is a
dismissal of the application seeking leave to defend, the passing of a decree
is automatic. The Court also explained the concept of "dependent" order.
The meaning of dependent order is, if there are two sets of orders, one
which is the main order and the other which is the consequential order, the
setting aside of the main order results in the setting order of the
consequential order.
11. Though a plain reading of the judgment in Ajay Bansal's case
(cited supra) might support the submissions of Mr.S.R.Rajagopal, a deeper
scrutiny of the judgment reveals that the position of law is otherwise. The
Supreme Court had an occasion to consider the Ajay Bansal's case (cited
supra) subsequently in Wada Arun Asbestos Private Limited Vs. Gujarat
Water Supply and Sewerage Board, (2009) 2 SCC 432. After a survey of
several High Court and Supreme Court judgments, the Court held that if the
litigant had a right of appeal against the decree, then, he certainly has a right
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to challenge the order which was subject to revision in his memorandum of
appeal, when an appeal is filed against the decree itself. This judgment
clarified the position of law vis-à-vis Section 105 of the Code of Civil
Procedure. In paragraph No.22 of the said judgment, the Supreme Court,
after citing the Ajay Bansal's case (cited supra), had held that a revision is
maintainable as against the order granting leave or referring to grant leave.
12. Hon'ble Mr.Justice S.Nagamuthu had considered the very issue
and come to a conclusion that a revision is maintainable against an order
referring leave to defend, see: Shivsu Canadian Clear International
Limited Vs. Freightcan Global Logistics Private Limited, (2013) 2 LW
949. In light of the above discussion, I would reject the argument of
Mr.S.R.Rajagopal and hold the revision is maintainable.
13. The position of law exists on grant of leave to defend has been
settled by the judgment of the Supreme Court in IDBI Trusteeship Services
Ltd. Vs. Hubtown Ltd., (2017) 1 SCC 568. The Supreme Court held that,
(i) in case there is a meritorious plea raised by the defendant, then, he
will be entitled to unconditional leave;
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(ii) leave to defend can be granted subject to conditions in case "a
plausible defence" has been disclosed by the defendant;
(iii) If the defence that has been taken is absolute moonshine or an
illusory one, then, the defendant is not entitled to leave to defend at all.
14. These principles have been recently affirmed by the Supreme
Court in B.L.Kashyap and Sons Limited Vs. JMS Steels and Power
Corporation and Another., (2022) 3 SCC 294. Keeping these principles in
mind, if I were to approach the present case, the defence that has been raised
by the civil revision petitioner are as follows:-
(i) He does not know the respondent/plaintiff;
(ii) The amount that has been stated in the plaint is an exorbitant
amount as it has not been preceded by reconciliation;
(iii) The Civil Court will not have jurisdiction;
(iv) The suit is barred by limitation by virtue of the fact that the
pronotes are of the year 2013, 2015 and 2016 and the present suit has been
filed only in the year 2022.
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15. Insofar as the plea on the Commercial Courts Act is concerned,
the learned Trial Judge has analysed the aspect in detail and rejected the
plea. I am ad idem with the view taken by the learned Judge. A reading of
the plaint shows that the amounts claimed were not lent during the course of
a "commercial transaction". It is a private transaction without any
"commercial" or "business" link. A private transaction will not be covered
by the Commercial Courts Act, 2015. The Commercial Courts Act is
"transaction centric" and not "person centric". That not being the situation
here, I have to conclude that the Trial Court has jurisdiction.
16. However, with respect to the other pleas namely, bar of limitation,
the petitioner/defendant does not know the respondent/plaintiff and also the
fact that the reconciliation of accounts have not been appreciated by the
learned Trial Judge in a proper manner. Though they are contradictory,
being a defendant, the civil revision petitioner is entitled to take contrary
defence. They disclose a plausible defence. If he succeeds on either of the
defence, then, he will not be liable to pay the entire amount as demanded by
the respondent/plaintiff. However, I have to take into consideration the
submission of Mr.S.R.Rajagopal that the respondent/plaintiff has agreed
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that he has no intention to default the alleged dues to the
respondent/plaintiff and that the suit claim is based on error in calculation.
17. The defence being plausible but not meritorious, at the same time,
not being one of moonshine, while setting aside the order of the XXIII
Additional City Civil Court, Allikulam at Chennai in I.A.No.3 of 2023,
dated 29.01.2024, I am inclined to impose a condition on the defendant.
The leave to defend application stands allowed on the condition that the
petitioner/defendant deposits 50% of the decree amount namely,
Rs.64,99,160/- together with interest at the rate of 12% per annum from
21.07.2022 till the date of deposit within four weeks from today. In case the
amount is not deposited, the Civil Revision Petition will stand dismissed
without further notice of the Court. It is also made clear that the
petitioner/defendant will not be entitled to move any application for
extension of time.
18. Accordingly, this Civil Revision Petition stands allowed. No
costs. Consequently, connected miscellaneous petition is closed.
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06.08.2024
Index : yes/no
Speaking order/Non-speaking order
Neutral Citation : yes/no
grs
Note:- Issue order copy on 08.08.2024.
To
The XXIII Additional Judge,
City Civil Court,
Allikulam,
Chennai.
https://www.mhc.tn.gov.in/judis
V.LAKSHMINARAYANAN, J.
grs
06.08.2024
https://www.mhc.tn.gov.in/judis
