Madras High Court
S.Balasubramanian vs V.Govindan on 16 July, 2013
Author: K.Ravichandra Baabu
Bench: K.Ravichandra Baabu
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 16.07.2013 CORAM THE HON'BLE MR.JUSTICE K.RAVICHANDRA BAABU Civil Revision Petition No.117 of 2007 and MP.NO. 1 of 2007 S.Balasubramanian .. Petitioner Vs V.Govindan .. Respondent Civil Revision Petition against the fair and decreetal order dated 27.10.2003 made in I.A.No. 10872/2003 in O.S.No. 1425/03 on the file of the XV Assistant City Civil Court, Chennai. For petitioner : Mr.P.Valliappan For respondent : No appearance O R D E R
This Civil Revision Petition is filed against the order rejecting the application filed under Order XXXVII Rule 3 of Code of Civil Procedure seeking unconditional leave to defend the suit.
2. Though notice was ordered in the Civil Revision Petition, the respondent has not chosen to appear either in person or through counsel. The name of the respondent is printed in the cause list. Heard Mr.P.Valliappan, learned counsel for the petitioner.
3. The petitioner herein is the defendant in a suit filed by the respondent in O.S.No. 1425 of 2003 on the file of City Civil Court, Madras seeking for recovery of sum of Rs.2,34,500/- together with interest on the principal amount of Rs.1,75,000/-. The case of the plaintiff is that the defendant borrowed a sum of Rs.1,75,000/- from the plaintiff on 10.4.2000 and executed a promissory note on the same date promising to repay the said sum together with interest at the rate of 24% per annum on demand. The repeated request and demand made by the plaintiff for repayment of the said sum have not brought any result and consequently, he filed the above said suit for the relief as stated supra under Order XXXVII Rule 1 and 2 of Code of Civil Procedure, as a summary suit.
4. The petitioner filed an application seeking permission to defend the suit in I.A.No. 10872 of 2003. In the affidavit filed in support of the said application, the petitioner contended that the promissory note dated 10.4.2000 is a forged one and he has no connection with the same. One Sivalingam approached the petitioner on 5.1.2000 and informed that a job at I.O.C. can be secured for any person if they are ready to spend a considerable amount. Accordingly, the petitioner recommended his friend by name Nithyanandam to the said Sivalingam and they paid Rs.25,000/- in cash on 22.3.2000 and for the remaining amount as a surety, the said person obtained signature from the petitioner in the blank stamped papers. When the job was not secured, the petitioner demanded repayment of the said sum and also for return of the signed blank stamped papers. The said Sivalingam did not return those papers and on the other hand, the petitioner received a notice from the respondent herein on 10.1.2003 as if he had borrowed a sum of Rs.1,75,000/- from him. Thus, it is the contention of the petitioner that the said Sivalingam had played some mischief and he misused the blank stamped papers signed by him. He also gave a police complaint on 17.2.2003, which was under investigation. Thus, it is the contention of the petitioner that he never borrowed money and never executed the promissory note in favour of the plaintiff/respondent. It is his categorical case that the said Sivalingam misused the blank stamped papers signed by him.
5. The said application was resisted by the plaintiff by filing a counter. The court below, on going into the merits of the matter and rival contentions raised by both the parties in respect of the suit claim, rejected the application. A perusal of the order passed by the court below would show that it has gone into the question of genuineness of the promissory note and also taken into consideration the petitioner's attitude in not giving reply to the said notice. The court has also observed that the petitioner has not filed the copy of the complaint said to have been lodged before the police.
6. In my considered view, the approach of the court below while dealing with the application filed under Order XXXVII Rule 3 of Civil Procedure Code is totally erroneous and unsustainable. It has been repeatedly held that court has to only see as to whether the facts narrated in the affidavit filed in support of the application filed under Order XXXVII Rule 3, discloses any triable issues between the parties and if there are triable issues, then leave to defend has to be granted without going into the correctness or otherwise of the facts stated by the petitioner seeking to leave to defend. I have considered the similar issue in a case reported in 2012 (5) CTC 313 G.RAJARAJAN v. AIG CONSUMER FINANCIAL SERVICES (INDIA) LTD. and held at paragraph 19 as follows:-
"The Court below ought to have noted that even on merits the petitioner as the defendant is only called upon under Order 37, Rule 3(5), C.P.C. to show or disclose some facts which are triable in nature and he is not even required at that stage to establish those facts. Defending a suit is a valuable right available to a defendant, which cannot be denied or brushed aside in a casual manner. That is why the language of Order 37, Rule 3(5) of C.P.C only contemplates that the Defendant "may disclose such facts as may be deemed sufficient entitle him to defend". Therefore, whether the facts are true in nature and based on those facts whether the Defendant is entitled to succeed in the Suit is purely a matter for trial, which could be possibly gone into only when the Defendant is granted leave to defend such suit. Therefore, the Application filed under Order 37, Rule 3(5), seeking for grant of leave should be considered by the Courts only by keeping it in mind that a defence, which is a valuable right cannot be taken away in a lighter and casual approach, simply because the Suit is filed under Order 37, Rule 1, CPC. It is also to be noted, at this juncture, that if no such leave is granted, he is thrown out at the threshold and made to suffer a decree forthwith. Therefore, the Courts must show utmost care and caution while considering the Application under Order 37, Rule 3(5), and see as to whether the facts disclosed would lead to a valuable defence with triable issues and of course, such defence is not frivolous and vexatious. "
7. Here in this case, the petitioner has categorically stated that he has not executed any promissory note in favour of the plaintiff. It is also his case that he has only signed the blank stamped papers, that too, at the instance of one Sivalingam, who is not a party to the proceedings. Thus, his contention was that as the said person has not returned the blank promissory note, the petitioner had filed a police complaint. All these contentions raised by the petitioner have to be gone into only during regular trial to find out whether they are true. It is needless to say that both the parties are entitled to lead their respective evidence in support of their pleadings. Therefore, even before giving such opportunity to the parties, the court below is not justified in going into the merits of the matter in detail and giving a finding in the very suit itself. Therefore, in my considered view, the order passed by the court below has to be set aside and accordingly, the same is set aside. Consequently, the above Civil Revision Petition is allowed and the application in I.A.No. 10872 of 2003 is allowed. No costs. Consequently, connected MP is closed.
8. Even though the application filed under Order XXXVII Rule 3 of Code of Civil Procedure Code is allowed in this revision, still the consequent decree passed by the court below has to be set aside only in the manner known to law, for which purpose, the petitioner has to approach the court below by filing a petition under Order XXXVII Rule 4 of Code of Civil Procedure by placing the order passed in this Civil Revision Petition.
bg To XV Assistant City Civil Court Chennai