Rahima Printers rep. by its Partners v L.M. Kishan Chand on 08 July 2004 - Judgement (2024)

The above civil revision petition has been filed against the fair and decretal order dated 10.3.2003 made in I.A. No.39 of 2003 in O.S. No.4139 of 2002 on the file of the Court of XIV Asst. City Civil Judge, Chennai.

2. Tracing the history of the case and upon hearing the learned counsel for the petitioner, it comes to be known that the plaintiff/respondent herein filed a suit for recovery of a sum of Rs. 25,000/- with interest wherein the petitioners filed I.A. No. 39 of 2003 to grant leave to defend the suit and the same was dismissed against which, the above civil revision petition has been filed by the petitioners on the grounds as brought forth in the grounds of the civil revision petition.

3. Heard the learned counsel for the petitioners and perused the records with no representation made on the part of the respondent.

4. The above civil revision petition has been filed testifying the validity of the fair and decretal order passed by the lower Court thereby refusing to grant leave to defend the suit. The suit filed was one for the recovery of the sum of Rs.25,000/- lent on promissory note executed in favour of the respondent/plaintiff; that on failure to pay the principle and interest, the respondent herein has prayed for a decree for a total sum of Rs.35,100/- and that seeking to defend the said suit, I.A. No. 39 of 2003 has been filed under Order 37 Rule 3 (5) of C.P.C. before the lower Court by the defendants 1 to 3 praying for the grant of unconditional leave on grounds such as that the petitioners have not issued any cheque towards interest for the loan; that the suit is barred by limitation; that the petitioner has a valid and substantial defence to the suit claim and there are triable issues for consideration and on such grounds he has prayed to grant the leave to defend the suit.

5. During arguments, the learned counsel appearing on behalf of the petitioner would cite a judgment delivered by a learned single Judge of this Court reported in N. PRABAKARAN – Vs. - MANAGER, CITY BANK, N.A., 766 ANNA SALAI, CHENNAI.2 (2001, 4, CTC 178 ) wherein the learned Judge has referred to a jugment of the Hon'ble Apex Court reported in A.I.R. 1977 S.C. 577, which has been followed by this Court in a case reported in RAMALINGAM – Vs. - BASAVALINGAM (A.I.R. 1991, Mad. 274) wherein certain principles were laid down while considering the application for grant of leave to defend the suit and adhering the facts of the case handled by the learned single judge and citing the clause 'c' envisaged in the judgment of the Apex Court reported in M/s.MECHALEC ENGINEERS & MANUFACTURERS – Vs. - BASIC EQUIPMENT CORPORATION (A.I.R. 1977 S.C. 577), the learned Judge has decided that the petitioner therein was entitled to the leave to be granted to defend the suit unconditionally.

6. It is relevant to extract the principles laid down under Clause 'c' in the afore mentioned judgment of the Apex Court.

" If the defendant discloses 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 leave to defend but in such a case the Court may in its discretion impose conditions as to the time or mode of trial but not as to the payment into Court or furnishing security".

7. On a careful perusal of the facts and circ*mstances of the case and having regard to the materials placed on record and in consideration of the Apex Court judgment as adumbrated in the judgment of the learned single Judge of this Court, this Court is of the view that the revision petitioner has proved to the effect that there are triable issues so as to be granted with the leave to defend the suit and hence the

O R