- (1.) THE above Civil Revision Petition is directed against the fair and decretal order dated 19.8.1996 made in I.A. No.8764 of 1995 in O.S.No.3086 of 1994 by the XI Assistant Judge, City Civil Court, Madras, thereby refusing to grant unconditional leave to defend the suit and prove his case.
(2.) IT is the petitioner/defendant who filed the said application before the trial court under Order 37 Rule 3(5) C.P.C. praying to the effect as aforementioned alleging in the affidavit filed in support of the petition, that the suit is barred by pro-notes would show that they were executed at Thirunindravur where he resides and no cause of action would arise to the lower court; that the suit transaction was with one K. Shanmuga Mudaliar, and the plaintiff is one in whose favour the three pro-notes dated 6.5.1984 were made over; that he had been given notice only after assignment of the pro-notes; that the amounts had not been specified either on the pro-notes or in the letter dated 25.2.1990, thereby indicating that no consideration had passed on to the assignor thus rendering the assignment invalid. Further averments of the affidavit filed before the lower court in support of the petition are that, various amounts have been paid on various dates and the endorsements made on the pro-notes have been made only for the purpose of limitation; that after the payment of interest, the entire principal amount of Rs.26,000 had been paid; that the plaintiff did not return the pro-notes, the amounts of which have been duly discharged and cancelled, but with a false plea that he failed to make endorsement, the plaintiff has come forward to file the vexatious suit; that the plea of the plaintiff that there is still more money due under the pro-notes is incorrect and without merit; that all the amounts due under the pro-notes dated 6.5.1984 have been discharged; that only to harass him and to extort money from him, he has come forward to file the vexatious suit which is not maintainable in law or on facts; that the payments made, discharge of the pro-notes, the jurisdiction and limitation questions raised could only be proved in a fullfleged trial and hence the petition praying for an unconditional leave to defend the suit and prove his case. In the counter filed by the plaintiff, he would contend that on payment of an amount of Rs.5,000 on 10.4.1991, endorsement had been effected on the back of the pro-notes and hence the suit filed on 6.4.1994 was in time and no question of limitation would arise, that the allegation that the pro-notes were executed at Thirunindravur is incorrect, but the same was at Madras at the residence of K. Shanmuga Mudaliar on receipt of the amount by the petitioner; that had these allegations been true they should have been spelt out in the Lawyer's notice dated 25.3.1991 which inspite of receipt, the petitioner had not even replied thereby establishing that he had no defence of the question of limitation and jurisdiction: that the question of consent of the petitioner prior to making over the pro-notes which are not legally sustainable; that the amount due as on the date of assignment had not been specified either on the pro-notes or in the letter dated 25.2.1991 are legally unsustainable; that had it been so, h e would not have paid the amount on 10.4.1991 and effected the endorsement on the back of the pro-notes. The further allegations such as, that the assignment of the pro-notes is sham and nominal and is invalid are up to the petitioner to prove; that there is no question of limitation at all; that the allegations of various other payments made on various other dates than that are found on the pro-notes with endorsement are all false and denied, The other allegations such as, that after the payment of interest the entire principal amount of Rs.26,000 had been paid; that the plaintiff did not have the pro-notes with him on that date; that the pro-notes had not been returned after due discharge of the amount, are all false and baseless. The other allegations contended in para 6 of the affidavit filed in support of the petition would also be stoutly denied in the counter besides stating that the petitioner had not made out a case for grant of an unconditional leave to defend the suit to prove his case, but has come forward with the above application to protract the proceedings and to harass this respondent and what have all been stated in the petition are all unfounded and false allegations with intention to harass the plaintiff/respondent and would ultimately pray for the dismissal of the same with costs. During arguments, the learned counsel appearing for the petitioner would contend that the suit has been filed by the plaintiff for the recovery of a sum of Rs.44,880 that was due to the plaintiff on a pro-note, said to have been executed by the defendant; that 3 issues have been framed for determination of the suit, that as per the averments in para 10 of the plaint, the plaintiff admits that the defendant paid as part amounts, sums of Rs. 10,000 Rs. 10,000 and Rs.6,000 towards the amounts due on three pro-notes all dated 6.5.1984 thus admitting the repayment of the total amount of Rs.26,000. Hence, the averments contained in paras 4 to 6 of the affidavit have been admitted by the plaintiff; that the final payment of Rs.26,000 has been made in the presence of two witnesses.
(3.) AT this juncture, the learned counsel would cite two Judgments reported in respectively (i) 1990 L.W S.C.709 and (ii) AIR 1965 S.C. 1698. So far as the first Judgment cited above is concerned, Ismail, J. (as he then was) has cited a judgment of the Supreme Court reported in Mechalac Engineers and Manufacturers v. Basis Equipment Corporation , AIR 1977 S.C. 57. The Supreme Court referred to a decision of the Calcutta High Court with approval and observed as follows:- . In Smt. Krianmmoyee Dasi v. Dr. J. Chatterjee , Das J, after a comprehensive review of authorities on the subject, stated the principles applicable to cases covered by Or. 37 C.P.C. in the form of the following propositions, at page 253 " (a) If the defendant satisfies the court that he has a good defence to the claim on its merits, the plaintiff is not entitled to leave to sign judgment and the defendant is entitled to unconditional leave to defend. (b) If the defendant raises a triable issue indicating that he has a fair or bona fide or reasonable defence although not a positively good defence, the plaintiff is not entitled to sign judgment and the defendant is entitled to unconditional leave to defend. (c) If the defendant disclosed such facts as may be deemed sufficient to entitle him to defend, that is to say, although the affidavit does not positively and immediately make it clear that he had a defence, yet shows such a state of facts as leads to the inference that at the trial of the action he may be able to establish a defence to the plaintiff's claim, the plaintiff is not entitled to judgment and the defendant is entitled to defend, but in such a case the court may in its discretion impose conditio ns as to the time or mode of trial, but not as to payment into court or furnishing security. (d) If the defendant has no defence or the defence set up is illusory or sham or practically moonshine, then ordinarily the plaintiff is entitled to leave to sign judgment and the defendant is not entitled to leave to defend. (e) If the defendant has no defence or the defence is illusory or sham or practically moonshine, then although ordinarily the plaintiff is entitled to leave to sign judgment, the Court may protect, the plaintiff by only allowing the defence to proceed, if the amount claimed is paid into court or otherwise secured and give leave to the defendant on such condition and thereby show mercy to the defendant by enabling him to try to prove a defence." 8. The case before us certainly does not fall within the clause (e) set out above. It is only in that class of cases that an imposition of the condition to deposit an amount in court before proceeding further is justifiable. So far as the second judgment cited above by the learned counsel for the revision petitioner is concerned, it is only dealing with Order 37, Rule 8 C.P.C. and not Order 37, Rule 3(5), C.P.C. under which the application has been filed by the revision petitioner before the lower court. Yet another Order delivered by the Single Judge of this court in C.R.P.No. 3122 of 1996 wherein unconditional leave is granted to the petitioner/defendant to contest the suit allowing the Civil Revision Petition as per the Order dated 22.7.1997 would also be cited by the counsel for the petitioner. ;