Mir Ali Mujahith v. State Bank of Trivancore

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED:19.3.2009Coram:THE HONOURABLE MR.JUSTICE G.RAJASURIAS.A.No.935 of 2008andM.P.No.1 of 2008Mir Ali Mujahith ... Appellant/Defendant vs.State Bank of Trivancore,rep.by its Deputy General Manager,No.162, Anna Salai,Chennai-600 002.... Respondent/Plaintiff This second appeal is filed under Section 100 of CPC against thejudgement and decree dated 22.11.2007 passed in A.S.No.74 of 2007 bythe VII Additional City Civil Court, Chennai confirming the judgementand decree dated 17.8.2006 passed by the 11th Assistant City CivilJudge, Chennai, in O.S.No.6176 of 2004.For Appellant : No appearanceFor Respondent : No appearanceJUDGMENTThis second appeal is focussed by the defendant, animadvertingupon the judgement and decree dated 22.11.2007 passed in A.S.No.74 of2007 by the VII Additional City Civil Court, Chennai, confirming thejudgement and decree dated 17.8.2006 passed by the 11th Assistant CityCivil Judge, Chennai, in O.S.No.6176 of 2004, which was filed forrecovering a sum of Rs.1,36,649.90 with interest at 11% per annum inquarterly rest. However, the defendant entered appearance andresisted the suit by filing written statement.2. The trial Court framed the relevant issues. During trial,the plaintiff examined himself as P.W.1 and Exs.A1 to A5 were marked.The defendant examined herself as D.W.1 on her side and no documentwas marked.3. Ultimately, the trial Court decreed the suit and as againstwhich, A.S.No.74 of 2007 was filed for nothing but to be dismissed bythe first appellate Court, confirming the judgement and decree of thelower Court. https://hcservices.ecourts.gov.in/hcservices/

4. Being disconcerted and aggrieved by the judgements and decreesof both the Courts below, this second appeal is focussed by thedefendant on various grounds and also setting out the followingsubstantial question of law:-"(1) Whether the judgement and decree of the Courtbelow are legally sustainable in as much as the respondentfailed to establish the case of payment under billspurchase?(2) Whether the Courts below are right in notconsidering the admission of P.W.1.?"5. Despite printing the names concerned, none appeared.6. A bare poring over and perusal of the typed set of papers,including the judgements of both the Courts below, would exemplifyand expatiate, demonstrate and display that the defendant approachedthe plaintiff bank for availing loan for setting up a xerox centreunder the PMRY Scheme and accepting his request, the plaintiffsanctioned a Midium Term Loan of Rs.94,500/-. In consideration ofthe said loan, the defendant executed the sanctioned letter-Ex.A1-dated 27.5.2001 and Composite Loan Agreement-Ex.A2-dated 24.2.2009.Subsequently, the defendant also executed a revival letter-Ex.A3-dated 26.11.2001 in favour of the plaintiff. However, the defendantcommitted default in repaying the loan amount, which necessitated theplaintiff to file the suit.7. The defendant's contentions are that the xerox machine, whichwas supplied to him was defective, whereupon he called upon theplaintiff not to honour the bill payable to the supplier in respectof such machine, and nevertheless that was not responded to by theplaintiff. Accordingly, she prayed for the dismissal of the suit.8. The trial Court discussed the plea of the defendant and foundout that it was a spurious and false plea. Absolutely there is noshard or shred, scintilla or pint-sized, iota or molecule extent ofevidence to fortify and buttress the plea of the defendant.9. The expectation of both the Courts below that if at all thecase of the defendant was true, he should have communicated at therelevant time itself, in writing and he should have produced somedocumentary evidence before the Court. Only when the plaintiff Banktook steps to enforce the recovery of loan, the defendant did chooseto dish out and fabulate such untenable plea. On the contrary, thevery factum of the defendant having made part payments up to24.11.2004 to the plaintiff would prove fatal to his plea. The lowerCourt, on the plaintiff's side, considered the evidence of P.W.1-theofficial of https://hcservices.ecourts.gov.in/hcservices/ the Bank, including Exs.A1 to A5 and rendered the judgement on meritsand the appellate Court also, after correctly appreciating therelevant facts and evidence, dismissed the appeal. The suggestedsubstantial questions of law, in stricto sensu cannot be treated assubstantial question of law at all, in view of the fact that thelower Court considered the evidence properly and decided it andnothing has been highlighted to find fault with the same.10. At this juncture, my mind is redolent and reminiscent of thefollowing decisions of the Honourable Supreme Court:(ii) (2006) 5 Supreme Court Cases 545 – HERO VINOTH(MINOR) VS. SESHAMMAL, certain excerpts from its would runthus:-"17. After the amendment a second appeal can be filedonly if a substantial question of law is involved in thecase. The memorandum of appeal must precisely state thesubstantial question of law involved and the High Court isobliged to satisfy itself regarding the existence of such aquestion. If satisfied, the High Court has to formulatethe substantial question of law involved in the case. . . .. . . ."18. . . . . . It has to be kept in mind that theright of appeal is neither a natural nor an inherenth rightattached to the litigation. Being a substantive statutoryright, it has to be regulated in accordance with law inforce at the relevant time. The conditions mentioned inthe section must be strictly fulfilled before a secondappeal can be maintained and no court has the power to addor to enlarge those grounds. The second appeal cannot bedecided on merely equitable grounds. The concurrentfindings of facts will not be disturbed by the High Courtin exercise of the powers under this section. Further, asubstantial question of law has to be distinguished from asubstantial question of fact. . . . . . 21. . . . . However, it is clear that the legislaturehas chosen not to qualify the scope of "substantialquestion of law" by sufficing the words "of generalimportance" as has been done in many other provisions suchas Section 109 of the Code or Article 133(1)(a) of theConstitution. The substantial question of law on which asecond appeal shall be heard need not necessarily be asubstantial question of law of general importance. InGuran Ditta v. Ram Ditta the phrase "substantial questionof law' as it was employed in the last clause of the then https://hcservices.ecourts.gov.in/hcservices/ existing Section 100 CPC (since omitted by the AmendmentAct, 1973) came up for consideration and their Lordshipsheld that it did not mean a substantial question of generalimportance but a substantial question of law which wasinvolved in the case. In Sir Chunilal case theConstitution Bench expressed agreement with the followingview taken by a Full Bench of the Madras High Court inRimmalapudi Subba Rao v. Noony Veeraju(Sir Chunilal case,SCR p.557)"When a question of law is fairly arguable, wherethere is room for difference of opinion on it or where theCourt thought it necessary to deal with that question atsome length and discuss alternative views, then thequestion would be a substantial question of law. On theother hand if the question was practically covered by thedecision of the highest court or if the general principlesto be applied in determining the question are well settledand the only question was of applying those principles tothe particular fact of the case it would not be asubstantial question of law."This Court laid down the following test as proper test, fordetermining whether a question of law raised in the case issubstantial:(Sir Chunilal case, SCR pp.557-58)"The proper test for determining whether a question oflaw raised in the case is substantial would, in ouropinion, be whether it is of general public importance orwhether it directly and substantially affects the rights ofthe parties and if so whether it is either an open questionin the sense that it is not finally settled by this Courtor by the Privy Council or by the Federal Court or is notfree from difficulty or call for discussion of alternativeviews. If the question is settled by the highest court orthe general principles to be applied in determining thequestion are well settled and there is a mere question ofapplying those principles or that the plea raised ispalpably absurd the question would not be a substantialquestion of law."23. To be "substantial" a question of law must bedebatable, not previously settled by law of the land or abinding precedent, and must have a material bearing on thedecision of the case, if answered either way, insofar asthe rights of the parties before it are concerned. To be aquestion of law "involving in the case" there must be firsta foundation for it laid in the pleadings and the question https://hcservices.ecourts.gov.in/hcservices/ should emerge from the sustainable findings of fact arrivedat by court of facts and it must be necessary to decidethat question of law for a just and proper decision of thecase. An entirely new point raised for the first timebefore the High Court is not a question involved in thecase unless it goes to the root of the matter. It will,therefore, depend on the facts and circumstance of eachcase whether a question of law his a substantial one andinvolved in the case or not, the paramount overallconsideration being the need for striking a judiciousbalance between the indispensable obligation to do justiceat all stages and impelling necessity of avoidingprolongation in the life of any lis.(See Santosh Hazari v.Purushottam Tiwari).24. . . . (iii) The general rule is that High Court will notinterfere with the concurrent findings of the Courts below.But it is not an absolute rule. Some of the well-recognised exceptions are where (i) the Courts below haveignored material evidence or acted on no evidence; (ii) thecourts have drawn wrong inferences from proved facts byapplying the law erroneously; or (iii) the courts havewrongly cast the burden of proof. When we refer to"decision based on no evidence", it not only refers tocases where there is a total dearth of evidence, but alsorefers to any case, where the evidence, taken as a whole,is not reasonably capable of supporting the finding."(ii) 2008(4) SCALE 300 – KASHMIR SINGH VS. HARNAMSINGH AND ANOTHER, an excerpt from it would run thus- 9. It has been noted time and again that withoutinsisting for the statement of such a substantial questionof law in the memorandum of appeal and formulating the sameat the time of admission, the High Courts have been issuingnotices and generally deciding the second appeals withoutadhering to the procedure prescribed under Section 100 ofthe Code. It has further been found in a number of casesthat no efforts are made to distinguish between a questionof law and a substantial question of law. In exercise ofthe powers under this Section in several cases, thefindings of fact of the first appellate Court are found tohave been disturbed. It has to be kept in mind that theright of appeal is neither a natural nor an inherent rightattached to the litigation. Being a substantive statutoryright, it has to be regulated in accordance with law inforce at the relevant time. The conditions mentioned in https://hcservices.ecourts.gov.in/hcservices/ the section must be strictly fulfilled before a secondappeal can be maintained and no court has the power to addor to enlarge those grounds. The second appeal cannot bedecided on merely equitable grounds. The concurrentfindings of facts will not be disturbed by the High Courtin exercise of the powers under this Section. Further, asubstantial question of law has to be distinguished from asubstantial question of fact. This Court in Sir Chunilalv. Mehta and Sons Ltd.v. Century Spg.& Mfg.Co.Ltd.(AIR 1962SC 1314) held that:"The proper test for determining whether a question oflaw raised in the case is substantial would, in ouropinion, be whether it is of general public importance orwhether it directly and substantially affects the rights ofthe parties and if so whether it is either an open questionin the sense that it is not finally settled by this Courtor by the Privy Council or by the Federal Court or is notfree from difficulty or calls for discussion of alternativeviews. If the question is settled by the highest court orthe general principles to be applied in determining thequestion are well settled and there is a mere question ofapplying those principles or that the plea raised ispalpably absurd the question would not be a substantialquestion of law."A plain reading of the above judgements would leave no doubt thatunless there is substantial question of law involved in a matter, nosecond appeal would lie.11. My discussion supra would connote and denote that hereabsolutely there is no merit in the second appeal and accordingly,the same is dismissed. No costs. Consequently, connectedmiscellaneous petition is dismissed.Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.Msk https://hcservices.ecourts.gov.in/hcservices/ To1. The VII Additional Judge, City Civil Court, Chennai.2. The 11th Assistant Judge, City Civil Court, Chennai3. The Registrar, City Civil Court, Chennai.Copy to The Section Officer, V.R.Section, High Court, Madras.+ 1 CC To Mr.B.Christdas, Advocate SR NO.9043 S.A.No.935 of 2008CK {CO}TP/30.3.2009.