High Court · 2007

IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 07.12.2007 Coram: THE HONOURABLE MR.JUSTICE M.VENUGOPAL C.R.P.(NPD)No.1757 of 2003andC.M.P.No.18438 of 2003 M/s.Sundaram Motors,(a Division of T.V.Sundaram Iyengar & Sons),180, Anna Salai, Mylapore,Chennai 600 006. .. Petitioner(Ist degendant)vs. B.Lalitha .. Respondent (Plaintiff) PRAYER:Civil Revision Petition filed to set aside the order anddecretal order in I.A.No.21928 of 2000 in O.S.No.3597 of 2000 passedby the XIV Assistant Judge, City Civil Court, Chennai on 11.09.2001refusing to grant to the petitioner leave to defend the suit andgrant unconditional leave to defend the suit. For Petitioner : Mr.A.Devanathan For Respondent : No Appearance O R D E RThe Civil Revision Petitioner is the first defendant inO.S.No.3597 of 2000 on the file of the learned XIV Assistant Judge,City Civil Court, Chennai. The Civil Revision Petitioner herein hasfiled an I.A.No.21928 of 2000 before the trial Court as petitionerunder Order 37, Rule 3(5) of C.P.C. and under Section 151 C.P.C.praying to permit him to defend the suit and filed a writtenstatement in due course. The Respondent/Plaintiff filed a counterstating that the application is not maintainable in law and that theapplicant/First Defendant has no triable issues to defend the suit ascontemplated under Order XXXVII, Rule 5 C.P.C. and that the amountswere collected by the Applicant/First Defendant as Trustee and theamounts were handed over only to him for due performance and thedrafts were taken according to the instructions given by theapplicant at the time of booking and that the applicant acted onbehalf of the second defendant as booking agent and hence, both arejointly and severally liable for due repayment and prayed fordismissal of the said application.2.The learned XIV Assistant Judge, City Civil Court, Chennai haspassed order in I.A.No.21928 of 2000 on 11.09.2001 observing that theApplicant/first Defendant has no triable issues and that theapplicant is not eligible to seek unconditional leave to defend the https://hcservices.ecourts.gov.in/hcservices/ suit and dismissed the said application with costs.3.The learned counsel for the Revision Petitioner/firstDefendant/Applicant contends that the order passed in I.A.No.21928 of2000 dated 11.09.2001 is erroneous in law and that the Court belowfailed to see that the suit for refund of car booking advance paid bythe Respondent/Plaintiff directly to the second defendant is notmaintainable as against the Civil Revision Petitioner/firstDefendant/Applicant and that no cause of action arose for theRespondent/Plaintiff as against the Revision Petitioner/FirstDefendant/Applicant since no amount is due from the RevisionPetitioner/first Defendant/Applicant to the Respondent/Plaintiff.4.It is the further case of the Revision Petitioner/firstDefendant/Applicant that at the time of car booking advance contract(not produced by the respondent/Plaintiff) between theRespondent/Plaintiff and the second defendant clearly mentioned forrefund of car booking advance by the second defendant alone in caseof cancellation and not by the Revision Petitioner/first Defendantand this fact was not properly appreciated by the Court below andthat the Revision Petitioner/first Defendant/Applicant was nowhere inthe picture and whether the suit is maintainable against the RevisionPetitioner/first Defendant/Applicant raises a triable issue and theRevision Petitioner/first Defendant/Applicant has a genuine andvalid defence and in this background, the Court below ought to havegranted leave to the Civil Revision Petitioner/first Defendant andtherefore, the order passed by the Court below in I.A.No.21928 of2000 dated 11.09.2001 is liable to be set aside.5.The learned counsel for the Revision Petitioner relied onthe decision 1998 (II) CTC 382, SUNIL ENTERPRISES AND ANOTHER V. SBICOMMERCIALL AND INTERNATIONAL BANK LTD., wherein it is observed asfollows:-"Code of Civil Procedure 1908, Order 37, Rule 3(5) –Summary suit – Leave to defend- Suit filed based on Billsof Exchange which were accepted by Appellants – Summarysuit filed by Bank – Bank paid out large amounts of Billsof Exchange accepted by party who has already defaulted –Some of the Bills of Exchange were mere secondary documents– Defence raised by Appellants is not moonshine or illusory– Appellants have Prima Facie Case – Unconditional leavegranted to defendant to defend suit."6.The learned counsel for the petitioner cited the decision 2001(4) CTC 178 between N.PRABAKARAN AND MANAGER CITIBANK N.A., 766, ANNASALAI, CHENNAI-600 002, wherein it is held as follows:-"Code of Civil Procedure, 1908, Order 37, Rule 4– Grantof leave to defend in summary suit – Principles governingsuch leave – Defendant in summary suit for recovery of moneyfiled petition pleading discharge of total loan amount andrelied on 2 letters to prove discharge – Defendant who seeksleave to defend is not bound to prove his case at time of https://hcservices.ecourts.gov.in/hcservices/ consideration of grant of leave – Court should find whetherdefendant has raised triable issues and whether defence isnot sham or illusory – If defendant is able to demonstratethat liability was discharged and documents relied onby plaintiff was found to be forged after trial suit isbound to be dismissed – Triable issue is one which is provedat time of trial would result in dismissal of suit and leaveto defendant has to be granted – Order of trial courtgranting conditional leave on payment of Rs.2 lakhs setaside and unconditional leave is granted."7.The learned counsel for the revision petitioner pressed intoservice the decision 2006(3) CTC 583 at page No.584 between LIFEINSURANCE CORPORATION OF INDIA AND ANOTHER AND SMT.S.SINDHU, whereinit is observed that,'Courts and Tribunals cannot re-write contracts anddirect payment of money contrary to terms of contract.'8.On the side of the Revision petitioner, the decision 2003(II)CPJ 176(NC) between T.V.SUNDARAM IYENGAR & SONS LTD. ANDDR.MUTHUSWAMY DURAISWAMY & ANOTHER, is relied on and the same runs asfollows:- "Consumer Protection Act, 1986 – Section 21(b) –Motor Vehicles – Refund – Liability of dealer – Failure todeliver vehicle -Refund of booking amount claimed -Complaint against manufacturer dismissed by Forum – Henceappeal - State Commission held, manufacturer and dealerjointly and severally liable to refund deposited amount -Hence Revision - Consumer Forum has no jurisdiction tostrike down a condition in contract - Specific terms ofcontract, manufacturer liable to refund the money withinterest - Dealer not liable for non-refund the money withinterest-Dealer not liable for non-refund of amount bymanufacturer, not jointly and severally liable - Order setaside - Manufacturer committed breach of agreement, liableto refund the amount with interest - Cost awarded." 9.In 2003 All India High Court Cases 1542, RAJABHAU MAHADEORAORAHATE V. DINKAR SHANTARAM INGOLE, on the interpretation of Section115 Civil Procedure Code as amended in 1999, it was held as follows:-"(i)The provisions of Section 115 as amended witheffect from 1st July, 2002 are applicable from that date toall proceedings pending in High Court under Section 115 ofthe Civil P.C.(ii) There is no right in a litigant to move anapplication under Section 115 of the Civil P.C. forexercise of the jurisdiction mentioned therein.(iii) That it being not a right, there is no questionof it being saved by recourse to provisions of Section 6 of https://hcservices.ecourts.gov.in/hcservices/ the General Clauses Act, 1897.(iv)The provisions of Section 32(2)(i) of theAmendment Act of 1999 do not either by direct legislationor by necessary implication save any such proceedings frombeing affected by the Amendment with effect from01.07.2002.(v)As a consequence of the above, all revisionapplication, whether pending as on 1st July 2002 or filedthereafter, will have to be dealt with strictly inaccordance with the provisions of Section 115 of the CivilP.C. With effect from 1st July, 2002.vi) As a further consequence thereof, no revisionapplication against an interlocutory order will beentertainable even if the order is made prior to 1st July,2002 as moving High Court under Section 115 is held not tobe a right."10. In AIR 2004 DELHI 219, V.S.SAINI AND ANOTHER V. D.C.M.LTD., it is observed as follows:-"(A) Civil P.C. (5 of 1908), O.37, R.3(6) S.96 –Summary suit – Refusal to grant leave – Order whetherappealable - R.3(6) specifically stipulates that if leaveto defend suit is refused plaintiff shall be entitled tojudgment – Thus interlocutory order refusing leave todefend partakes form of judgment, thereby making itvulnerable to assault only through substantive and regularappeal – Thus defendant can avail second opportunity topresent its defence by filing an appeal." 11.In (2003) 6 SCC 659, SHIV SAKTHI CO-OP. HOUSING SOCIETY,NAGPUR V. SWARAJ DEVELOPERS, it is held that 'the amendments areprocedural in character and are therefore to be applied to allproceedings that have to be decided'. To put it differently, theamendments have retrospective applicability in the considered opinionof this Court.12.In view of the amendments made to Section 115 of the CivilProcedure Code, a revision can no longer be filed on the basis thatthe order, if allowed to stand, would result in failure of justice orcause irreparable injury.13.In that view of the matter, without going into the merits ofthe case, this Court comes to the conclusion that the revision is notper-se maintainable and this Court opines that the interlocutoryorder refusing leave to defend partakes the form of judgment and onlya regular and substantive appeal can be filed against the saidinterlocutory order dated 11.09.2001, if so aggrieved and that theCivil Revision Petitioner/First Defendant/Applicant will have to paynecessary Court fee in appeal and in that view of the matter, theCivil Revision Petition is dismissed. In the circumstances of thecase, the parties are directed to bear their own costs. The connected https://hcservices.ecourts.gov.in/hcservices/ miscellaneous petition is closed.vriSd/Asst. Registrar/true copy/Sub Asst.RegistrarTo1.The XIV Assistant Judge,City Civil Court,Chennai.2.The Registrar, City Civil Court, Chennai.3.The Section officer, VR Section, High Court, Chennai.+ 2 ccs to Mr. T.R. Sundaram, Advocate SR 72308+ One cc to Mr. T. Francis Ashok, Advocate SR 72337BK (co)sg 03/01/08 Order inC.R.P. NPD 1757 of 200307.12.2007