Madras High Court
Texon India Private Limited vs Taw Exports Private Limited on 12 August, 2022
Author: Sathi Kumar Sukumara Kurup
Bench: Sathi Kumar Sukumara Kurup
CRP.(PD)No.2845 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 20.07.2022
PRONOUNCED ON : 12.08.2022
CORAM:
THE HONOURABLE MR. JUSTICE SATHI KUMAR SUKUMARA KURUP
CRP.(PD).No.2845 of 2021
Texon India Private Limited
273 (191) Velachery-Tambaram
Main Road, Narayanapuram, Pallikaranai
Chennai 600 100
Rep.by its Authorised Signatory
Mr.A.Venkatesan ...Petitioner/Respondent/Plaintiff
-Vs-
TAW Exports Private Limited
Third Floor, No.1, Krishnama Road
Mashkur Building
Nungambakkam, Chennai 600 034
Also having Office at No.55
Vepery High Road, Chennai 600 003
Rep.by its Director. ... Respondent/Applicant/Defendant
1/11
https://www.mhc.tn.gov.in/judis
CRP.(PD)No.2845 of 2021
Prayer: Civil Revision Petition filed under Article 227 of Constitution of India, to
set aside the common order dated 08.10.2021 passed by the Learned XVIII
Additional City Civil Court, Chennai, in I.A.No.1 of 2021 in O.S.No.3460 of
2020.
For Petitioner : Mr.H.Siddarth
For Respondent : Mr.K.M.Aasim Shehzad
for M/s.BFS Legal
ORDER
This petition had been filed seeking to set aside the order passed in I.A.No.1 of 2021 in O.S.No.3460 of 2020 on the file of the XVIII Additional City Civil Court, Chennai.
2. It is the contention of the Learned Counsel for the Petitioner that the petition had been filed seeking to set aside the order passed in I.A.No.1 of 2021 in O.S.No.3460 of 2020, filed by the Defendant seeking leave to defend.
3. It is the further contention of the Learned Counsel for the Petitioner that he had filed a suit in O.S.No.3460 of 2020 under Order XXXVII Rule 4 of 2/11 https://www.mhc.tn.gov.in/judis CRP.(PD)No.2845 of 2021 CPC, and on filing the suit, the Plaintiff issued Judges summons based on which notice had been served within 10 days to the Defendant. The Defendant claims that he was not served with the notice of Judges summons within 10 days as specified in Order XXXVII Rule 3 of CPC. Therefore, he had claimed that his valuable right of defence had been affected and he sought to convert the suit into an ordinary suit and had filed I.A.No.1 of 2021 seeking to convert the suit into an ordinary suit and permit him to defend the suit.
4. The Learned Judge without going into the facts regarding the service of notice within stipulated time of 10 days, accepted the petition filed by the Defendant seeking to convert the suit into an ordinary suit and allowed the I.A.No.1 of 2021 and dismissed the I.A.No.2 of 2021, as per the order dated 08.10.2021.
5. The Learned Counsel for the Petitioner invited the attention of this Court to the provision of law under Order XXXVII Rule 1 to 7 of CPC and to the orders passed by the Learned XVIII Additional Judge, City Civil Court, Chennai, by a common order dated 08.10.2021 in I.A.Nos.1 & 2 of 2021 filed by the 3/11 https://www.mhc.tn.gov.in/judis CRP.(PD)No.2845 of 2021 Defendant to try the suit as an ordinary suit, I.A.No.2 of 2021 had been filed by the Defendant to grant leave to the Applicant to defend the suit. The claim of the Defendant in the suit that the notice of the Judges summons in Form No.4 in Appendix B was not served upon him within 10 days by the Respondent/Plaintiff is false. In compliance of the provisions stipulated under Order 37 Rule 3 (4) of CPC and on receipt of notice of appearance on 19.02.2021, the Respondent/Plaintiff served the Judges Summons in Form 4 A in Appendix B on the Petitioner/Defendant within a period of 10 days that is on 01.03.2021 and the same was also acknowledged by the Counsel for the Petitioner/Defendant. The Affidavit of Service was also filed before the Court regarding the service of summons on the Counsel for the Petitioner.
6. The contention of the Defendant to treat the suit as an ordinary suit does not hold water. After conducting the enquiry, the Learned XVIII Additional Judge, City Civil Court, Chennai had passed a common order. The Learned Judge failed to follow the mandatory provision of Order XXXVII of CPC. Therefore, as a consequence, the suit which has been treated as ordinary suit, cannot be allowed to continue as summary suit. On entering appearance by the Defendant, he 4/11 https://www.mhc.tn.gov.in/judis CRP.(PD)No.2845 of 2021 contended that the Plaintiff had not served on the Defendant, only in order to avoid full fledged trial and cross examination. Therefore, the Learned Judge had dismissed the I.A.No.2 of 2021 and allowed the I.A.No.1 of 2021.
7. It is the further contention of the Learned Counsel for the Petitioner that he is the Plaintiff before the trial Court, who had served the notice on the Respondent/Defendant within 10 days, as per Order XXXVII Rule 3 CPC, and an affidavit of service also filed before this Court. Without verifying those things, the Learned XVIII Additional Judge, City Civil Court, Chennai ought not to have come to a conclusion that the notice was not served on the Respondent/Defendant.
8. The Learned Counsel for the Petitioner invited the attention of this Court to the acknowledgement card received from the Respondent, and in the first hearing date as on 05.01.2021 in the case history annexed along with the typed set, it is found that it is pending for service.
9. The Learned Counsel for the Petitioner invited the attention of this Court to the reported ruling in support of his contention in the Judgment of High 5/11 https://www.mhc.tn.gov.in/judis CRP.(PD)No.2845 of 2021 Court, Bombay, in Bankay Bihari G.Agrawal Vs. Bhagwanji Meghihi and Ors, reported in MANU/MH/0089/2001.
10. It is stated by the Learned XVIII Additional City Civil Court, Chennai, that the Plaintiff had not served the Judges summon within a specified time of 10 days. In the absence of the said notice, the summary procedure cannot be adopted, since the Petitioner/Plaintiff had not complied with the Order XXXVII Rule 3 of CPC. The Learned XVIII Additional City Civil Court, Chennai, had permitted the defendant to participate in the proceedings, but treating the suit as an ordinary suit.
11. The Learned Counsel for the Respondent submitted a ruling in support of his contention in the Judgment of the Hon'ble Supreme Court in B.L.Kashyap and Sons Ltd., Vs. M/s.JMS Steels and Power Corporation & Anr, reported in 2022 LiveLaw (SC) 59 (Arising out of SLP ( C ).No.19413 of 2018), the relevant portion at para No.17, is extracted hereunder:
“17. It is at once clear that even though in the case of IDBI Trusteeship, this Court has observed that the principles stated in 6/11 https://www.mhc.tn.gov.in/judis CRP.(PD)No.2845 of 2021 paragraph 8 of Mechelec Engineers case shall stand superseded in the wake of amendment of Rule 3 of Order XXXVII but, on the core theme, the principles remain the same that grant of leave to defend (with or without conditions) is the ordinary rule; and denial of leave to defend is an exception. Putting it in other words, generally, the prayer for leave to defend is to be denied in such cases where the defendant has practically no defence and is unable to give out even a semblance of triable issues before the Court.
17.1. As noticed, if the defendant satisfies the Court that he has substantial defence, i.e., a defence which is likely to succeed, he is entitled to unconditional leave to defend. In the second eventuality, where the defendant raises triable issues indicating a fair or bonafide or reasonable defence, albeit not a positively good defence, he would be ordinarily entitled to unconditional leave to defend. In the third eventuality, where the defendant raises triable issues, but it remains doubtful if the defendant is raising the same in good faith or about genuineness of the issues, the Trial Court is expected to balance the requirements of expeditious disposal of commercial causes on one hand and of not shutting out triable issues by unduly severe orders on the other. Therefore, the Trial Court may impose conditions both as to time or mode of trial as well as payment into the Court or furnishing security. In the fourth eventuality, where the proposed defence appear to be plausible but 7/11 https://www.mhc.tn.gov.in/judis CRP.(PD)No.2845 of 2021 improbable, heightened conditions may be imposed as to the time or mode of trial as also of payment into the Court or furnishing security or both, which may extend to the entire principal sum together with just and requisite interest.
17.2. Thus, it could be seen that in the case of substantial defence, the defendant is entitled to unconditional leave; and even in the case of a triable issue on a fair and reasonable defence, the defendant is ordinarily entitled to unconditional leave to defend. In case of doubts about the intent of the defendant or genuineness of the triable issues as also the probability of defence, the leave could yet be granted but while imposing conditions as to the time or mode of trial or payment or furnishing security. Thus, even in such cases of doubts or reservations, denial of leave to defend is not the rule; but appropriate conditions may be imposed while granting the leave.”
12. It is the submission of the Learned Counsel for the Petitioner that the summon in the Suit was served on 19.02.2021 i.e., within 10 days, on the Respondent who had filed the petition under Order XXXVII Rule 4 of CPC seeking to leave to defend the Suit and to convert the suit into an ordinary suit. 8/11 https://www.mhc.tn.gov.in/judis CRP.(PD)No.2845 of 2021
13. It is the submission of the Learned Counsel for the Petitioner that the Judges summon were served on the Defendant on time. It happened to be in the Month of February 2021 wherein, there was only 28 days. Therefore, the Plaintiff had served the summons for Judgment in Form 4-A in Appendix B on the Defendant within a period of 10 days i.e., on 01.03.2021 and the same was acknowledged by the Counsel for the Respondent/Defendant. The Affidavit of Service was also filed and despite receiving the summons for Judgment on 01.03.2021, the Respondent/Defendant on 15.03.2021 had filed an application I.A.No.1 of 2021 under Order XXXVII Rule 4 CPC to try the summary suit as ordinary suit on the ground that the Petitioner/Plaintiff herein had not complied with the mandatory provision of Order XXXVII Rule 3 (4) of CPC of serving summons for Judgment in Form No.4A in Appendix B within 10 days. From the receipt of notice of appearance from 19.02.2021 to 01.03.2021, there is interval of 10 days, and as per the General Clause Act, the conclusive day is also inclusive. Therefore on the date of service of Judges summons on the Defendant which was on 01.03.2021, he had received the Judges summons within 10 days, he has to file a petition seeking to serve copies on him, he had taken notice. The Interpretation by the Learned XVIII Additional Judge, City Civil Court, Chennai, that the 9/11 https://www.mhc.tn.gov.in/judis CRP.(PD)No.2845 of 2021 Petitioner had not complied with Order XVIII Rule 3 is found not acceptable, in the light of the above reasons mentioned by the Learned XVIII Additional Judge. Therefore, the contention of the Learned Counsel for the Revision Petitioner that notice was served on time is found acceptable in the light of the General Clauses Act as the last day is to be included while calculating the number of days.
14. In the above stated facts, the reported ruling cited by the learned Counsel for the Petitioner/Plaintiff in Bankay Bihari G.Agrawal Vs. Bhagwanji Meghihi and Ors, reported in MANU/MH/0089/2001 is found acceptable and applicable to the facts of this case. The contention of the learned Counsel for the Respondent/Defendant relying on the ruling of B.L.Kashyap and Sons Ltd., Vs. M/s.JMS Steels and Power Corporation & Anr, reported in 2022 LiveLaw (SC) 59 (Arising out of SLP ( C ).No.19413 of 2018), that ordinarily the Court has to grant leave to defend (with or without conditions) and denial of leave to defend is an exemption cannot be accepted in the facts of this case as the Petitioner/Plaintiff had caused notice as per the provisions of Order XXXVII, Rule 4 of CPC and also Order XXXVII, Rule 3(4) of CPC in serving the summons for judgment in Form No.4A in Appendix B within ten days. Therefore, the order passed by the Learned 10/11 https://www.mhc.tn.gov.in/judis CRP.(PD)No.2845 of 2021 XVIII Additional Judge in I.A.No.1 of 2021 in O.S.No.3460 of 2020 is liable to set aside.
In the light of the above discussion, this Civil Revision Petition is allowed.
The order passed in I.A.No.1 of 2021 in O.S.No.3460 of 2020 on the file of the XVIII Additional City Civil Court, Chennai, is set aside. No costs. Consequently, connected Miscellaneous Petition is closed.
12.08.2022 Index:Yes/No Internet:Yes/No dna To The XVIII Additional City Civil Court, Chennai.
11/11 https://www.mhc.tn.gov.in/judis CRP.(PD)No.2845 of 2021 SATHI KUMAR SUKUMARA KURUP,J., dna Pre-Delivery Order made in CRP.(PD).No.2845 of 2021 12.08.2022 12/11 https://www.mhc.tn.gov.in/judis CRP.(PD)No.2845 of 2021 13/11 https://www.mhc.tn.gov.in/judis