BEFORE THE HIGH COURT OF JUDICATURE AT MADRAS
DATE : 16.04.2010
CORAM
THE HONOURABLE MR.JUSTICE C.S.KARNAN
CRP(NPD).No.429 of 2010
and
M.P.No.1 of 2010
M.Asan Ali .. Petitioner
Vs.
C.Mahaveer Kumar .. Respondents
Prayer:- This Revision petition is filed under Section 115 of C.P.C. against the Fair and Decreetal order, dated 27.10.2009, passed in I.A.No.14875 of 2009 in O.S.No.7786 of 2005, on the file of the VI Assistant City Civil Court, Chennai.
For Petitioner : Mr.B.Gurunathan
For Respondent : No appearance
O R D E R
This Civil Revision Petitioner herein is the applicant in I.A.No.14875 of 2009 and defendant in O.S.No.7786 of 2005, on the file of the VI Assistant City Civil Court, Chennai.
2.The Civil Revision Petitioner has filed an Interlocutory Application in I.A.No.14875 of 2009 praying to grant unconditional leave to the petitioner/defendant to defend the above suit against the respondent/defendant on 25.08.2009, under Order XXXVII Rule 3(5) r/w Section 151 of C.P.C. In the said application, the revision petitioner/applicant/defendant has inter-alia stated that the respondent/plaintiff has filed the suit for recovery of a sum of Rs.25,000/- together with interest thereon, at the rate of 36%. The revision petitioner submitted that the plaintiff obtained his signature in an unfilled blank promissory note. After his signature was affixed, the plaintiff filled the said blank promissory note, according to his wants and wish, for the purpose of filing the suit. The revision petitioner further stated that he has paid the interest for a period, which was more than the period stated in the plaint. Further, he had never been served with the legal notice as stated in the plaint. As such, in the suit, there are issues, which have to be tried. The revision petitioner has stated that the suit has been filed beyond the limitation period and as such he has prayed for unconditional leave to defend the suit.
3.In the counter filed by the respondent/plaintiff, it is stated that the consideration was received by the revision petitioner/defendant from the plaintiff, by means of account payee Cheque drawn on Union Bank of India bearing No.312671, dated 11.11.2002. The respondent/plaintiff has mentioned in his plaint that the revision petitioner has paid interest upto 10.01.2003 at the rate of 36% per annum, which is a contract rate of interest and agreed rate of interest. The respondent has agreed that the revision petitioner has paid interest, but has denied the allegation of the revision petitioner that he had paid the entire principal amount. Hence, he has prayed to dismiss the said interlocutory application.
4.The learned VI Assistant City Civil Court Judge, Chennai, in his order dated 27.10.2009 passed in I.A.No.14875 of 2009 stated that the promissory note has been executed on 11.11.2002 and the suit had been filed on 10.11.2005 and as such, the plaintiff has filed the suit within a period of limitation. The learned Judge further pointed out in his order that the revision petitioner has not given the particulars of payment and he has not mentioned the evidence, that such payments has been made. In the suit promissory note, the particulars of Cheque by which the borrower received the consideration has been shown. After considering the above reasons, the learned Judge was of the opinion that there are no triable issues and therefore the petitioner is not entitled to leave. Hence, the learned Judge dismissed the petition.
5.As against the said Order passed by the VI Assistant City Civil Judge, Chennai, dated 27.10.2009 in I.A.No.14875 of 2009 in O.S.No.7786 of 2005, the present Civil Revision Petition has been preferred by the civil revision petitioner/applicant/defendant.
6.The learned counsel for the civil revision petitioner has contended that the Lower Court failed to consider the importance of the application filed by the petitioner for leave to defend the case, which is filed based on the alleged promissory note by the respondent, which is a vital document to decide the issue arising in the suit.
7.It has also been contended that the Lower Court failed to consider the averment that the signature of the petitioner has been obtained in the blank and unfilled promissory note and afterwards the respondent herein filled the said promissory note according to his will and wish, without the knowledge of the petitioner. It has also been contended that the Lower Court ought to have allowed the application, since the petitioner has raised a triable issue indicating that he has a fair or bonafide or reasonable defence and as such is entitled to unconditional leave to defend.
8.It was also pointed out that the Lower Court failed to consider that the rate of interest mentioned in the alleged promissory note was never agreed with by the petitioner as the said rate of interest is exorbitant in nature.
9.It has also been contended that the Lower Court failed to consider that the plaint does not reveal the correct particulars of the repayments made by the petitioner to the respondent. It was also pointed out that the Lower Court did not consider the fact that there is no demand of repayment made by the respondent and that no legal notice has been served to the petitioner as stated in the plaint.
10.It has also been contended that the Lower Court erred in holding that the petitioner did not produce the evidence of repayments made by him. Based on that finding, the Trial Court dismissed the application. However, the Trial Court deprived the petitioner of his valuable right to interrogate or cross examine the respondent, by way of oral evidence, which is against law and non-application of mind.
11.It has also been pointed out that the Lower Court failed to note that the alleged promissory note was dated 11.11.2002 and the plaint was presented only on 10.11.2005 before the Trial Court and as such the said suit claim is barred by limitation. Hence, the respondent cannot invoke Order XXXVII of Civil Procedure Code and he is not entitled to any relief under the said proviso.
12.It has also been contended that the Lower Court failed to consider that there is no cause of action arisen as stated in the plaint. The alleged cause of action stated in the plaint is created by the plaintiff as stated in Ground-3, by way of filling the blanks in the said promissory note to file the above said suit. As such, the learned counsel for the revision petitioner has prayed to set aside the Order passed by the learned Trial Judge.
13.Considering the facts and circumstances of the case, perusal of the order passed by the learned Trial Judge and arguments advanced by the learned counsel for the revision petitioner, this Court is of the opinion that the learned Judge has rightly pointed out that the suit has been filed within time and that the major principal amount has been given to the revision petitioner by way of cheque. The learned Judge has further pointed out that the revision petitioner has not furnished any details of the repayment of principal amount and interest and this Court is in consonance with the views expressed by the learned Trial Judge. As such, this Court confirms the order passed by the learned VI Assistant Judge, City Civil Court, Chennai in I.A.No.14875 of 2009 in O.S.No.7786 of 2005, dated 27.10.2009 on the file of the VI Assistant City Civil Court, Chennai.
14.In the result, the above Civil Revision Petition is dismissed and the Fair and Decreetal order, dated 27.10.2009, in I.A.No.14875 of 2009 in O.S.No.7786 of 2005, passed by the VI Assistant Judge, City Civil Court, Chennai, is confirmed. Consequently, connected miscellaneous petition is closed. There shall be no order as to costs.
krk
To:
1.The VI Assistant City Civil Court,
Chennai