Madras High Court
Indra Devi Bhura vs Nitin Satya on 11 September, 2024
C.R.P. No. 611 of 2024
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 11.09.2024
CORAM
THE HONOURABLE MR. JUSTICE V.LAKSHMINARAYANAN
C.R.P. No. 611 of 2024
and
C.M.P. No. 3026 of 2024
Indra Devi Bhura ... Petitioner / Respondent / Plaintiff
Vs.
1. Nitin Satya
2. Ram Prasad ...Respondents / Petitioners / Defendants
PRAYER: Civil Revision Petition is filed under Article 227 of the
Constitution of India, against the order passed in I.A. No. 1 of 2023 in O.S.
No. 339 of 2023 dated 20.04.2023 on the file of the learned XXII Assistant
City Civil Court, Chennai.
For Petitioner : Ms. Mehek Asrani
For Respondents : Mr. P.Satheeshkumar
ORDER
Heard Ms.Mehek Asrani for the civil revision petitioner and Mr.
P.Satheeshkumar for the respondents.
2. This civil revision petition arises against the order passed by the
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learned XXII Assistant City Civil Court at Chennai in I.A. No. 1 of 2023 in
O.S. No. 339 of 2023 dated 20.04.2023.
3. The plaintiff is the civil revision petitioner. O.S. No. 339 of 2023 was
filed before the XXII Assistant City Civil Court at Chennai for recovery of a
sum of Rs. 2,25,000/- being the amount payable towards principal as well as
the interest. The cause of action for the suit is that on 06.01.2020, the
defendants had borrowed a sum of Rs.2,50,000/- from the plaintiff and, on a
subsequent day, they repaid a part amount of Rs.25,000/- to her. When the
plaintiff demanded the payment of the balance, the defendants defaulted,
hence the suit. She issued a notice calling upon the defendants to pay the
amount on 28.12.2020, to which a reply was given containing evasive and
false allegations. Invoking the provisions of Order XXXVII Rule 1 of the
Code of Civil Procedure, the present suit came to be filed.
4.The defendant on entering appearance, took out an application under
order XXXVII Rule 3 of the Code of Civil Procedure seeking for
unconditional leave to defend. The plea is that an amount of Rs. 40,00,000/-
was received from Om Prakash and he had repaid a sum of Rs. 34,00,000/- to
Om Prakash and had requested time to pay the balance. Time was granted and
he had repaid the amounts. Om Prakash had promised to return all the
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promissory notes with the endorsement of cancellation but he did not do so.
Instead, Om Prakash had set up the plaintiff and presented the plaint. The
learned Trial Judge after receipt of a counter, allowed the said application
unconditionally. Hence, this revision.
5. The position of law with respect to grant of leave has been settled by
the Supreme Court in Idbi Trusteeship Services Ltd., -vs- Hubtown Ltd.,
2017 (1) SCC 568. As per this judgment, if there is absolutely no defence or
the defence that has been raised is a moonshine, leave to defence should not
be granted. On the contrary, if the defence raised is sterling in character,
unconditional leave to defend should be granted. If the defence raised falls
between the two extremes, the Court held that the party would be entitled to
conditional leave.
6. Here is a case where the execution of the promissory note is admitted.
The plea is that it is an “Inchoate document”. Such a plea is contrary to section
4 of the Negotiable Instruments Act. As far as blank documents are concerned,
the Negotiable Instruments Act empowers a holder of a negotiable instruments
to fill up the blank document. Yet, the plea that the documents that were in
possession of Mr. Om Prakash and they had been handed over to the plaintiff,
cannot be said to be one without any defence at all.
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7. The defendant having accepted the signature in the document and
since payment of rupees Rs.25,000/- in due discharge of the amount has been
substantiated by the plaintiff, I would not say the defence is a stirling one. It
would fall within the extremes as laid down by the Supreme Court. The
learned Trial Judge had granting unconditional leave to defend. It is
erroneous. Therefore, the civil revision petition is allowed. I.A. No. 1 of 2023
will be allowed on the condition, the defendants deposit 50% of the suit claim
within a period of 8 weeks from the date of receipt of the copy of this order.
8. Accordingly, the civil revision petition is allowed. No costs.
Consequently, the connected miscellaneous petition is closed.
11.09.2024
Index : Yes/No
Speaking order : Yes/No
NCC : Yes/No
pal
Note: Upload order copy on 13.09.2024.
To
The learned XXII Assistant City Civil Court, Chennai.
https://www.mhc.tn.gov.in/judis
V.LAKSHMINARAYANAN, J.,
pal
11.09.2024
https://www.mhc.tn.gov.in/judis
