@JUDGMENTTAG-ORDER
K. Kalyanasundaram, J.@mdashThe petitioners are defendants in the suit O.S. No. 3042 of 2006. Aggrieved by the order dated 22.9.2006 in I.A. No. 14206 of 2006, they have filed this civil revision petition. The petitioners borrowed totally a sum of Rs. 50,000/- by way of four cheques and the cheque issued by the petitioners for Rs. 10,000/- towards part payment of the loan was dishonoured. Hence the respondent filed the suit as summary suit for recovery of Rs. 81,400/-.
2. On receipt of the summons, the petitioners filed an application in I.A. No. 14206 of 2006 seeking leave to defend the suit stating that they have paid considerable amount to the respondent towards the loan amount and that they have issued a cheque towards full and final settlement and so, they are not liable to pay any amount. Further they contended that there are triable issues involved in the suit.
3. Thereafter, the petitioners filed a written argument contending that they have supplied food products to the respondent for a value of Rs. 70,688.68 as per invoice No. 2 dated 7.11.2003, which was received and acknowledged by the respondent and the respondent paid Rs. 40,000/- by cheques towards the sale consideration and he is still liable to pay the balance amount. The petitioners also produced a xerox copy of the invoice. The respondent filed his counter and also a written argument disputing the purchase of food products from the petitioners and also denying the signature in the invoice.
4. Upon consideration of the materials, the trial Court dismissed the I.A. holding that the petitioners/defendants have admitted the borrowal of Rs. 50,000/- in their affidavit and also admitted the signature in the cheque and so they have no defence in the suit.
5. Aggrieved by the said order, the defendants have filed this revision petition.
6. Despite notice having been served upon the respondent, there is no representation for the respondent on 25.10.2003 and as such, the matter was directed to be posted today under the caption ''for orders''. Even today also there is no representation for the respondent.
7. The learned counsel for the petitioners submitted that the respondent issued a pre-suit notice dated 17.2.2006 stating that the petitioners borrowed money on four occasions by way of cheques totally a sum of Rs. 50,000/- and so they are liable to pay the amount with interest, for which, the petitioners sent a reply dated 2.3.2006 denying the allegation of borrowal of money and further stating that they had supplied food products to the respondent and for the sale consideration, the respondent has paid Rs. 40,000/- by way of cheques.
8. The learned counsel submitted that the reply given by the petitioners dated 2.3.2006 would show that the petitioners have disputed the liability and it may be considered along with the invoice dated 7.11.2003. The learned counsel further contended that though the petitioners had taken inconsistent stand in the affidavit and in the written argument, still there are triable issues involved in the suit and therefore, the petitioners are entitled for unconditional leave to defend the suit.
9. In support of his contention, the learned counsel placed reliance on the judgments of this Court reported in (i)
10. In the judgment reported in
11. In 2004 (2) TNLJ 45-V. Kamagarak v. M/s. Rahima Printers, rep. by its Partners and Others, the defence taken was that the suit was barred by limitation and the cheque was not given towards the interest of the loan. Therefore, this Court has granted unconditional leave.
12. In the judgment reported in 2008 (5) CTC 643-Aruna Hotels Ltd., Chennai vs. Akmal Jan, the defendant had totally disputed the business transaction with the plaintiff and therefore, the Hon''ble Apex Court, considering the case granted unconditional leave to defend the suit.
13. In the judgment reported in
22. Next, coming to the merits of the Revision, as per the plaint, the detention charges are to be paid by the defendant as per the terms and conditions. But, according to the defendant, there was neither an oral agreement nor any written agreement, under which, the terms and conditions were agreed upon, by which, the detention charges are to be paid by the defendant. This, in my considered opinion, is really a contentious issue. Apart from that, in the plaint, the interest at the rate of 18% per annum is also prayed for. But, there is no averment anywhere in the plaint as to how the plaintiff is entitled for interest, that too, at the rate of 18% per annum. This is yet another contentious issue.
So, this Court has granted unconditional leave. There is no dispute with regard to the proposition laid down in the judgment cited supra.
14. In all the above cases, the defendants have categorically denied their liability. But in the case on hand, in the affidavit the petitioners have contended that they have repaid the considerable amount towards loan amount, but the plaintiff failed to maintain account properly and thereafter, took inconsistent plea in the written argument. So, I am of the view that the judgments relied on by the learned counsel for the petitioners are not applicable to the facts of this case.
15. A bare reading of the provision of Order XXXVII Rule 3(5) of C.P.C. would clearly indicate that leave to defend may be granted to the defendant unconditionally or upon such terms as may appear to the Court to be just i.e. to say, the discretion is left to the Court to put the defendant on terms in the facts and circumstances of a particular case, and on compliance thereof, the defendant shall be entitled to defend the suit.
16. In this context it will be useful to refer to the judgment of the Hon''ble Apex Court reported in
9. On hearing the counsel for the appellant and on going through the materials on record, we feel that the trial court and High Court have taken a rather technical view of the matter. On a careful consideration of the matter, we are satisfied, that in the overall facts and circumstances of the case, the petitioner ought to have at least been allowed to defend the suit, subject to the condition of depositing a part of the plaintiff''s claim. We accordingly allow the appeal, set aside the orders of the trial court and the High Court and direct that the petitioner may be granted leave to defend the suit subject to deposit of Rs. 50,000/- in the trial Court. The leave shall be granted to the appellant provided the amount, as directed above, is deposited within two months from today.
17. In the light of the decision of the Hon''ble Apex Court in
Accordingly, the order dated 22.9.2006 made in I.A. No. 14206 of 2006 is set aside and the petitioners are permitted to defend the suit subject to depositing a sum of Rs. 30,000/- (rupees thirty thousand) to the credit of O.S. No. 3042 of 2006 on the file of VII Assistant, City Civil Court, Chennai, within a period of two months from the date of receipt of a copy of this order. In the result, the civil revision petition is ordered accordingly. No costs. Consequently, connected miscellaneous petition is closed.
