K. Bairamdas Vs K.P.N. Travels India Ltd.

@JUDGMENTTAG-ORDER

S. Palanivelu, J.@mdashThe allegations found in the affidavit filed by the petitioner are concisely as follows:

The respondents in the suit notice dated 22.06.2004, stated that the petitioner borrowed a sum of Rs.3,00,000/- on 13.10.2001 agreeing to repay the same with interest at 18% per annum. It was replied by the petitioner through his counsel on 12.07.2004 in which he has stated that there was transaction between both of them; that the respondent approached the petitioner who is a partner in Hotel Dashprakash and requested him to grant permission to park his buses and to pickup and drop passengers in the premises of the hotel Dashprakash; that it was agreed that the respondent should deposit a sum of Rs.3,00.000/- and at his request, the petitioner has signed a promissory note out of the abundant caution. In fact, it was not issued for any loan borrowed from respondent. As per the Government policy, the omni buses are not to be allowed to enter into the city of Chennai. Hence, the hotel premises was not utilised for the above purpose. By that time, the entire deposit of Rs.3,00,000/- made by the petitioner stood adjusted. Hence the petition.

The petitioner entered appearance on 2.11.2004 and he ought to have given Memo of Appearance within ten days as per the mandate under Order 37 Rule 3(1) C.P.C. But only on 6.12.2004 he gave Memo of Appearance. Hence he is not entitled for leave to defend. On receipt of Rs.3,00,000/- from the respondent the petitioner executed a promissory note on 6.10.2001. The consideration was made through Demand Draft. It is incorrect to state that the respondent made deposit of Rs.3.00,000/-, requesting the petitioner to permit him to park his buses in the premises of hotel Dashprakash, Poonamallee High Road, Chennai. M/s. Hotel Dasaprakash was put in liquidation and is represented through the Court''s Advocate Receiver Mr.S.M. Loganathan. For the purpose of parking plaintiff''s buses there was separate rental agreement with M/s. Hotel Dashprakash on 6.10.2001 on payment of Rs.45,000/- by means of a cheque. The said agreement was signed by S.M. Loganathan. The petitioner has no right to lease out the place in M/s Hotel Dashprakash. Hence the petition has to be dismissed as there are no triable issues.

2. After considering the contentions of the both sides, learned XIV Assistant Judge, City Civil Court, Chennai, dismissed the petition finding that the defence is illusory, sham and moonshine and the petition appears to have been filed to protract the proceedings. Challenge is made against the said findings.

3. It is stated conceding that the petitioner has received a sum of Rs.3,00,000/-from the respondent on execution of promissory note on 13.10.2001 agreeing to repay the same with interest at 18% p.a. For the notice issued by the counsel for the respondent, the petitioner has sent a reply stating that there was no such transaction. Even then the affidavit goes to the effect that the respondent made a deposit of Rs.3,00,000/- and at his request, as a matter of abundant caution, he executed a promissory note and that the entire deposit of Rs.3,00,000/- made by the respondent with the petitioner stood adjusted since after the inauguration of bus terminus at Koyambedu, no omni bus was allowed to enter the city of Chennai owing to the policy decision taken by the Government of Tamilnadu.

4. It is a converse contention of the respondent that for the purpose of parking omni buses he entered into an agreement with the Court Advocate Receiver Mr.S.M. Loganathan on 6.10.2001 and the agreement was inked by him on payment of Rs.45,000/-since M/s. Hotes Dashprakash is involved in liquidation proceedings. It is not dented that liquidation proceedings are pending as regards M/s. Hotel Dashprakash and the same is represented by the Court''s Advocate Receiver Mr. S.M. Loganathan. In such case, there cannot be anybody else to represent the establishment except the receiver appointed by the Court. The petitioner has not produced any documentary piece of evidence to show that he is a partner in M/s. Hotel Dashprakash and he is empowered to enter into any agreement with the third parties to lease any space in the hotel premises.

5. The payment of Rs.45,000/- was effected by means of cheque No.240666 dated 6.10.2001 drawn on Bank of Madura, T. Nagar, Chennai, as per allegations in the counter affidavit. If it is so, after the said date there could be no necessity for the respondent to enter into another agreement with the petitioner for the same purpose on deposit of Rs.3,00,000/- Except the ipse dixit of the petitioner nothing is forthcoming to show that payment of Rs.3,00,000/- to the petitioner was towards security deposit for the parking of buses. Worthwhile it is to note that the another defence of the petitioner goes to the effect that the deposit of Rs.3,00,000/- made by the respondent with the petitioner stood adjusted. This pleading is as vague as possible putting stumbling block for the Court to ascertain the facts. To put it clear, the affidavit is bereft of the particulars'' as to the nature of the adjustment as to the dates and heads of charges under which the alleged adjustment was made. It is a classical instance of illusory defence.

6. At the first place, it is not shown that the deposit of Rs.3,00,000/- with the petitioner was towards security deposit for permission to the respondent to park his buses in the hotel premises. Nextly, "adjustment" theory has been properly pleaded by the petitioner. In view of the above, both the defences are sham and moonshine. Defence raised by the petitioner does not attract the provisions of Order 37 of C.P.C.

7. In this context, learned counsel for the petitioner placed reliance upon the decision of the Honourable Supreme Court of India in M/s. Sunil Enterprises and Another Vs. SBI Commercial and International Bank Ltd., in which the position of law as discussed by the Court in various cases, has been enumerated. The operative portion of the Judgment goes thus:

"4. The position in law has been explained by this Court in Santosh Kumar Vs. Bhai Mool Singh, Milkhiram (India) Private Ltd. and Others Vs. Chamanlal Bros., and Mechelec Engineers and Manufacturers Vs. Basic Equipment Corporation, .. The prepositions laid down in these decisions may be summoned up as follows:

(a) If the defendant satisfies the court that he has a good defence to the claim on merits, the defendant is entitled to unconditional leave to defend.

(b) If the defendant raise a triable issue including that he has a fair or bona fide or reasonable defence, although not a possibly good defence, the defendant is entitled to unconditional leave to defend.

(c) If the defendant discloses such facts as may be deemed sufficient to entitle him to defend, that is, if the affidavit discloses that at the trial he may be able to establish a defence to the plaintiff''s claim, the court may impose conditions at the time of granting leave to defend -the conditions being as to time of trial or mode of trial but not as to payment into court or furnishing security.

(d) If the defendant has no defence, or if the defence is sham or illusory or practically moonshine, the defendant is not entitled to leave to defend.

(e) if the defendant has no defence or the defence is illusory of sham or practically moonshine, the court may show mercy to the defendant by enabling him to try to prove a defence but at the same time protect the plaintiff imposing the condition that the amount claimed should be paid into Court or otherwise secured."

8. As far as the point (e) is concerned the Court "may" show mercy to the defendant by enabling him to try to prove his defence on condition that the amount claimed should be paid into Court or otherwise secured. But if the defence is so frivolous or uncontestable, it could be found out prima facie, even in the initial stage those allegations shall not be allowed to stand as per the subsequent decision of the Apex Court.

9. In John Impex (P) Ltd. Vs. Surinder Singh and Others, (2003) 9 SCC 176 the Supreme Court has laid down guidelines in categorical terms that the Court cannot look into or weigh the evidence at this stage. It is permitted only at the time of the trial. The operative portion of the said decision read as follows:

"4.............In view of the decision of this Court in the case of Precision Steel and Engineering Works and Another Vs. Prem Deva Niranjan Deva Tayal, we feel that this matter should not have been rejected at this stage. The submission on behalf of the respondent is that the lease deed clearly confirms the title of the respondent. But this again is a matter to be considered at trial not at this stage, i.e., leave to defend application. At this stage neither evidence is to be weighed nor looked into. The purpose of introducing a provision like leave to defend, is only to find out frivolous, uncontestable cases at the initial stage, not to eliminate other class of cases which require adjudication after contest. In other words if there be no conceivable contest possible the litigation has to be nipped in the bud. In the present case we find that contest of the ownership of the landlord as such is seriously challenged."

10. Adverting to the facts and the circumstances of the present case, they indicate that the defence raised by the petitioner is worth nothing as described in the ruling aforestated. The Court has to find out whether the defence is frivolous or the case is uncontestable one. Ample materials are available in this case to find out the defence as frivolous and uncontestable. At the risk of repetition it is stated herein that the sum of Rs.3,00,000/-was accepted by the petitioner and there is an averment on behalf of the respondent that he paid (deposit towards security deposit) a sum of Rs.45,000/- by means of Demand Draft, for the purpose of parking his buses, long before the date of suit promissory note. The contents found in the reply notice are only after thought. The matter does not require any elaborate adjudication since the pleadings in both the affidavit and counter are more than sufficient to hold that they are only moonshine.

11. In case, if the Court passes order granting leave to defend, it must show appreciation of material by trial court while recording a conclusion mat triable issue is raised by the defendant. But here, no such conclusion could be reached since the matter does not involve any triable issue. Only if prima facie case is shown or a triable issue is raised, leave to defend unconditionally as prayed for could be granted as a rule and if otherwise the leave itself would become illusory. If no bona fides are found or if they were doubted, the leave may be refused. But the present case does not have scope for granting such lesser relief even.

12. Yet another contention on behalf of the respondent is that as per the provisions of law, the petitioner has not given Memo of Appearance within 10 days from the date of service of summons by complying with the conditions contained therein. As per counter, the petitioner entered appearance on 2.11.2004 and within 10 days he should have given a memo of appearance in order to fulfil the mandatory requirements of provision of Order 31 Rule (3)(1) C.P.C. But only on 6.12.04. he gave a memo of appearance, woefully out of time. Since the petitioner has not fulfilled the statutory requirements as aforestated, he has to be disentitled from projecting his plea for grant of leave to defend.

13. For the foregoing reasons, the petitioner has to be non-suited for relief prayed for. This court does not find any infirmity or illegality in the order passed by the Trial Court. The findings of the Court below deserve to be confirmed and accordingly confirmed. The petition does not merit in consideration. In fine, the petition is dismissed. Connected M.P. is also dismissed.