IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 28..08 ..2008 CORAM THE HONOURABLE MR. JUSTICE S. PALANIVELU C.R.P.(N.P.D.) No.2727 of 2007 and M.P.No.1 of 2007 M/s Aruna Hotels Ltd Chennai ... Petitioner Vs Mr.Akmal Jan ... Respondent Civil Revision Petition filed under section 115 of Civil Procedure Code to set aside the order made in I.A.No.20068 of 2006 and in O.S.No.7332 of 2006 by the learned XVIII Asst. City Civil Court, Chennai and thereby consequently grant unconditional leave to the petitionher to defend the suit in O.S.No.7332 of 200y. For Petitioners : Mr. S.R. Rajagopal For Respondent : Mr. A.R. Karunakaran O R D E R
The respondent/plaintiff filed Suit in O.S.No.7332 of 2006 on the file of the XVIII Assistant City Civil Court, Chennai for recovery of Rs.1,25,537/- from the petitioner/defendant.
2. The plaintiff is carrying on business as suppliers of floor coverings like carpets, laminated wooden flooring etc., to various reputed companies and the plaintiff got orders from the defendant for the supply of laying of carpets in its Hotel. Plaintiff raised two invoices dated 30.09.2004 and one on 28.10.2004 totalling a sum of Rs.2,25,537/-, for which the defendant paid a sum of Rs.1,00,000/- on 21.09.2004 as advance and remaining of Rs.1,25,537/- is kept unpaid. Inspite of the letters, reminders and Advocate Notice, the defendant has not paid the amount. Hence the suit is filed in the summary procedure of C.P.C.
3. The averments found in the affidavit, accompanied by the petition under Order 37 Rule 3 C.P.C., tersely are stated as follows:
3 (i) The documents filed with the plaint do not fasten any liability on the plaintiff to maintain the Suit, more so as a summary suit under Order 37 Rule 3 C.P.C. Plaintiff has cleverly concealed the the quotations submitted, work completion certificate issued by the concerned hall managers, delivery challans for the corresponding invoices. It is categorically agreed by the plaintiff that the defendant has every right to deduct money for delay and unsatisfactory supply/work. The plaintiff failed to comply with the terms of the quotation and purchase order cum work order and hence the defendant incurred huge loss as they could not let out the halls on the booked dates to their customers. The invoices produced by the plaintiff are fabricated for the purpose of claim. Rs.1,00,000/- paid by the defendant was treated as full and final settlement of the entire claim. Several triable issues have arisen for adjudication. Unless a full fledged trial is conducted in the above suit, the truth that the petitioner has settled the entire amount cannot be established. Hence the petition.
4. The allegations contained in the counter filed by the respondent/plaintiff may succinctly be drawn as follows:
4 (i) In good faith and trust the plaintiff executed the orders to the satisfaction of the defendant. It is false to allege that the terms of the quotation have been violated and the payment of Rs.1,00,000/- was towards final settlement of claim of the plaintiff . There was no delay as alleged by the defendant. Only at the instance of the defendant the work started at a later stage and at no point of time the defendant complained about any delay or dissatisfaction over the work carried out by the plaintiff. Even though one of the parties has not signed the invoices, it is a binding contract between the parties. No triable issue has arisen in this case. Hence the petition may be dismissed.
5. It is to be seen whether any triable issue has surfaced in this case to grant unconditional leave to defend, in favour of the defendant. If the defendant, on any prior occasion or after filing of the suit has admitted the claim of the plaintiff directly or otherwise, then the court may consider whether it could reject the request of the defendant. But in case on scrutiny of the pleadings and other records before the court, if it finds that the recording of oral evidence and full fledged trial or enquiry on factual aspects and also on the legal position are felt inevitable, then the Court can grant such leave as prayed for. In the said process, the Court is not expected to form nor to express any opinion or decision on such question before ever the evidence is introduced in the case. It could not be a fair approach on the part of the Court to divulge an opinion as to the facts and proposed evidence to be adduced before the Court and justice could not be rendered.
6. As far as the facts of the present case are concerned, it is a version of the plaintiff that as agreed, the defendant had not paid the remaining amount of Rs.1,25,537/- and inspite of demands the defendant remain tight-lipped. Per contra, it is the contention of the defendant that certain invoices, work completion reports have been burked by the plaintiff, that the works were completed on a later date after the agreed time and the payment of Rs.1,00,000/- should be treated as a final settlement.
7. While this court considers the above aspects, as transpired from the plea in the affidavit of the defendant, the suit could not be adjudicated in a summary manner but it could be disposed of only on appreciation of the oral evidence on record and bearing in mind the legal position prevailing at the time of deciding the case. The above said matters entirely rest upon factual background and the truth has to be unearthed only by discussing about the oral evidence on the strength of the documents produced by both the parties. In this context, by no stretch of imagination it could be stated that the matter does not contain any triable issue.
8. A Larger Bench Honourable Supreme Court in (1976) 4 SCC 687 [Mechelec Engineers and Mfrs. v. Basic Corpn.] has laid down a dictum which is as follows:
“In the case before us, the defendant had denied, inter alia, liability to pay anything to the plaintiff for an alleged supply of goods. It is only in cases where the defence is patently dishonest or so unreasonable that it could not reasonably be expected to succeed that the exercise of discretion by the trial Court to grant leave unconditionally may be questioned”
9. In the same Judgment the supreme Court has referred a Judgment of the Calcutta High Court [AIR 1949 Cal 479 (Sm.Kiranmoyee Dassi v. Dr.J. Chatterjee)] in which certain principles have been formulated. The said portion is as under:
“8. In Sm. Krianmoyee Dassi v. Dr.J. Chatterjee, Das, J., after a comprehensive review of authorities on the subject, stated the principles applicable to cases covered by Order 17 C.P.C. In the form of the following propositions (at p. 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 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 has a defence, yet, shews 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 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.
9. The case before us certainly does not fall within the class (e) set out above. It is only in that class of case that an imposition of the condition to deposit an amount in court before proceeding further is justifiable.”
10. The facts and the circumstances of the case on the hand are akin to the case before the Supreme Court. In view of the Court that the grant of leave could be granted ordinarily by the Court even though the defendant has no defence or defence is illusory or sham or practically moonshine, and in order to protect the plaintiff, the court may direct the defendant to deposit an amount into Court. But in the present case no such circumstances are available. It is incomprehensible that the defence raised by the defendant is illusory or sham or practically moonshine. As per the dictum laid down by the Apex Court, it is to be held that since the defence taken by the defendant has to be considered in the light of the factual aspects which could be portrayed during the course of recording the oral evidence and hence the clause (e) set out in the Calcutta High Court decision does not apply. The defendant is entitled for unconditional leave to defend. It is held that the order passed by the trial court suffers from infirmity, which is liable to be set aside.
11. In fine, the Civil Revision Petition is allowed and the order passed by the learned XVIII Assistant Judge, City Civil Court, Chennai, in I.A.No.20068 of 2006 in O.S.No.7332 of 2006 is set aside. Consequently connected M.P. is closed. No costs.
ggs
To
The XVIII Assitant Judge,
City Civil Court,
Chennai 600104