ORDER
V. Kanagaraj, J.
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 barfed 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.
3. 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 extrot 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 full-fledged trial and hence the petition praying for an unconditional leave to defend the suit and prove his case.
4. 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 pronotes 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 should have been spelt out in the lawyers notice dated 25.3.1991 which in spite of receipt, the petitioner had not even replied thereby establishing that he has 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, he would not have paid the amount on 10.4.1991 and effected the endorsement on the back of the pro-notes.
5. 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 contend 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 has 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.
6. 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 para 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.
7. At this juncture, the learned Counsel would cite two judgments reported in respectively,
(i) V. Kamalanathan v. E.I.D. Parry Ltd., Madras 90 L.W. 709.
(ii) Milkhi Ram (India) (P.) Ltd. v. Chaman Lal Bros. A.I.R. 1965 S.C. 1698.
So far as the first judgment cited above is concerned Ismail, J. (as he then was) has been cited judgment of the Supreme Court reported in Mechalae Engineers and Manufacturers v. Basic Equipment Corporation A.I.R. 1977 S.C. 57 : 90 L.W. (S.C.) (S.N.) 82. The Supreme Court referred to a decision of the Calcutta High Court with approval and observed as follows:
8. In Smt. Kiranmmoyee Dasi v. Dr. J. Chatterjee (1948) 49 Crl. W.N. 246. Das, J., after a comprehensive review of authorities on the subject, stated the principles applicable to cases covered by Order 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 plaintiffs 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 (conditions 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 conditions and thereby show mercy to the defendant by enabling him to try, to prove a defence.
9. 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.
8. 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.
9. The learned Counsel for the revision petitioner would cite another judgment reported in Mechelec Engineers and Manufacturers v. Basic Equipment Corporation 90 L.W. 82, wherein it is held that,
The only question which arises before us in this appeal by special leave is: could the High Court interfere, in exercise of its powers under Section 115, Civil Procedure Code, with the discretion of the Additional District Judge, in granting unconditional leave to defend to the defendant/appellant upon grounds which even a perusal of the order of the High Court shows to be reasonable.
10. In reply the learned Counsel appearing for the respondent would contend that money had been paid for value received in cash at Madras; that the pro-notes have been made over to the plaintiff and then the lawyer’s notice has been issued on 25.3.1991, and prior to that, originally on 25.2.1991, Shanmugha Mudaliar issued a letter in favour of the plaintiff making over the pro-notes in his favour; then the plaintiff issued notice to the defendant on acknowledgement dated 1.4.1991, for which there was no reply, thereby legally amounting to admission of the contents of the notice. Then the learned Counsel would cite from para 6 of the order that the petitioner has not specified the details of the payments, etc.
11. The principles applicable to cases covered by Order 37, C.P.C. have been laid down in a case decided in the Calcutta High Court, namely, Smt. Kirammoyee Dasi v. Dr. J. Chatterjee (1945) 49 C.W.N. 246, by Das, J. which later came to be approved by the Supreme Court in the case reported in Mechalac Engineers and Manufacturers v. Basic Equipment Corporation 90 L.W. 82, according to which, the defendant has to, satisfy 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. For such a claim, the defendant should raise 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. Now the only point for consideration is whether the defendant has disclosed such facts as may be deemed sufficient to entitle him to defend, or the defence set up is illusory or sham or practically moonshine.
12. So far as the case of the defence as set up in the affidavit regarding the jurisdiction question, the payment schedule, etc. which has been well answered in the counter affidavit by the plaintiff and has been admitted on the part of the defendant to the effect that there had already been three issues framed. Whether the defendant has satisfied the court raising a triable issue indicating that he has a fair or bona fide or reasonable defence is a point that is to be determined. Throughout the affidavit and in the argument, even though the revision petitioner/defendant raises many questions and even says at one place that he has got a triable issue, he has failed to bring out or disclose as to what is the triable issue so as to allow the application filed by him under Order 37, Rule 3(5), Civil Procedure Code and since this question is the upper most to be answered in the affirmative by the defendant and since the defendant has not brought forth in a more clear term as to what is the triable issue for allowing the application, it should be decided that the defendant is not entitled to unconditional leave to defend the suit.
13. Hence in the above circumstances, I am not able to see any valid or tangible reason to interfere with the decision of the lower court in dismissing the application filed by the revision petitioner. No patent error nor perversity in approach is seen in the order made by the lower court so as to call for interference by this Court. Hence, it is hereby decided that no interference need be necessary, in the circumstances of the case, into the fair and decretal order made by the lower court.
14. In result, the above civil revision petition fails and the same is dismissed. 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 City Civil Courts Madras, is hereby confirmed.
15. However, in the circumstances of the case/ there shall be no order as to costs.