G. Varadhan v. M.Harigopal

IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 6-3-2006 Coram: The Honourable Mr. Justice T.V. MASILAMANI C.R.P. (PD) No.288 of 2004andC.M.P.No.3227 of 2004G. Varadhan.. Petitioner in both the petition vs. M.Harigopal.. Respondent in -do-Civil Revision Petition against the fair and final orders dated30.12.2003 made in I.A.No.17446 of 2003 in O.S.No.3691 of 2003 on thefile of the III Assistant Judge City Civil Court, Chennai. For Petitioner : Mr.N.Anand VenkateshFor Respondent : Mr.G.N.Ashoklal ... O R D E RThis revision has been filed by the defendant in the suit inO.S.No.3691 of 2003 on the file of the III Assistant Judge, CityCivil Court, Chennai questioning the legality of the order passed bythe trial court in refusing to grant leave to defend. 2. Heard Mr.N.Anand Venkatesh, learned counsel appearing for thepetitioner and Mr.G.N.Ashoklal, learned counsel appearing for therespondent. 3. Learned counsel for the revision petitioner has contendedthat even though the suit promissory notes were executed by threepersons, the respondent filed the suit only against the revisionpetitioner and therefore the revision petitioner was constrained tofile the petition before the court below seeking leave of the courtto defend. Further, according to him, the other two promisors arethe principal debtors and the revision petitioner stood surety forthe due repayment of the loan. Hence he has urged that he has got a https://hcservices.ecourts.gov.in/hcservices/ valid defence in the suit. 4. In support of his contention, he relied upon the decision, MECHELEC RENGINEERS AND MANUFACTURERS v. BASIC EQUIPMENT CORPORATION(1976 (4) s.c.c. 687) wherein in paragraph (8), the Apex Courtreiterated the dictum of law as laid in KIRANMOYEE DASSI v.DR.J.CHATTERJEE (AIR 1949 CAL 479) in sub para (b) which reads asunder:-"In SM. KIRANMOYEE DASSI v. DR.J.CHATTERJEE, Das,J., aftera comprehensive review of authorities on the subject, stated the principles applicable to cases covered by Order17 C.P.C. in the form of the following propositions (atpage 253):(a) .. ..(b) If the defendant raises a triable issue indicatingthat he has a fair or bona fide or reasonable defencealthough not a positively good defence the plaintiff is notentitled to sign judgment and the defendant is entitled tounconditional leave to defend."Relying on the ratio cited above, learned counsel for the revisionpetitioner submitted that the revision petitioner has lost a valuabledefence in the suit by reason of such refusal to defend the same.5. In answer to such contention, learned counsel for therespondent has argued and in my opinion rightly that in a suit basedon promissory note executed by more than one promisor, one of themcannot be permitted to adduce evidence against the recitals in thedocument as per Section 92 of the Evidence Act and therefore he hasreferred me to the decision rendered in KRISTNAYYA v. KARNEDAN (AIR1935 MADRAS 643) in support of such proposition of law. In thiscontext, it is relevant to extract, the ratio of the decision whichreads as follows:-"Under Section 4, Negotiable Instruments Act, the maker ofa promissory note gives an unconditional undertaking to paythe sum of money mentioned in the note. Under Section 124,Contract Act, a surety is a person who undertakes aliability which is conditional on the failure of anotherperson to discharge the liability. There is thus anessential incompatibility between the position of a suretyand that of an executant of a promissory note. Section 92,Evidence Act, forbids proof in variation of the terms ofthe contract."6. Having regard to the rival submissions made by learnedcounsel for both sides in the light of the decisions cited supra, this Court is of the considered view that the revision petitioner is https://hcservices.ecourts.gov.in/hcservices/ not entitled to lead evidence against the recitals in the documentunder question, namely, the suit promissory note (vide) Section 92 ofthe Evidence Act. Following the ratio laid down in AIR 1935 MADRAS643, I am of the opinion that learned III Assistant Judge, City CivilCourt, Chennai has correctly held that the revision petitioner hasnot established a fair or bona fide or reasonable defence to grantthe leave as prayed for.7. For the aforesaid reasons, the impugned order is confirmedand the revision petition is dismissed. However, the revisionpetitioner is directed to work out his rights in accordance with law. Consequently, C.M.P.No.3227 of 2004 is closed. No costs.Sd/Asst. Registrar/true copy/Sub Asst. RegistrardppToThe Registrar, City Civil Court, Chennai.+1cc to Mr.N.Anand Venkatesh, Advocate Sr 10883+1cc to Mr.G.N.Ashok Lal Advocate Sr 10914AMB (CO)km/28.3. C.R.P.(PD)No.288 of 2004;& C.M.P.No.3227 of 2004