P.G. Sadasivam vs Andavar Electrical Distributions

P.D. Dinakaran, J.—No representation on behalf of the respondent.

Aggrieved by an order dated 6.2.2001 made in I.A.No. 13937 of 2000, filed under Order 37 Rule 5, C.P.C., refusing to permit the revision

petitioner/4th defendant to defend the suit in O.S.No. 1732 of 2000, laid by the respondent/plaintiff claiming a sum of Rs. 82,960/- under Order

37 Rule 1, the 4th defendant has preferred the above revision.

According to the revision petitioner/4th defendant, the suit cheques were misused by the other defendants and the plaintiff.

In this regard, I am obliged to refer Order 37 Rule 5, which reads as follows:

The defendant may, at any time within ten days from the service of such summons for judgment, by affidavit or otherwise disclosing such facts as

may be deemed sufficient to entitle him to defend, apply on such summons for leave to defend such suit, and leave to defend may be granted to him

unconditionally or upon such terms as may appear to the Court or Judge to be just:

Provided that leave to defend shall not be refused unless the Court is satisfied that the facts disclosed by the defendant do not indicate that he has a

substantial defence to raise or that the defence intended to be put up by the defendant is frivolous or vexatious:

Provided further that where a part of the amount claimed by the plaintiff is admitted by the defendant to be due from him, leave to defend the suit

shall not be granted unless the amount so admitted to be due is deposited by the defendant in Court.

The Apex Court, interpreting Order 37 Rule 5, C.P.C., relating to the powers of the Court to grant leave to defend a summary suit filed under

Order 37 Rule (1) C.P.C., in M/s. Sunil Enterprises and Another Vs. SBI Commercial and International Bank Ltd., after referring various

decisions of the Apex Court, has framed the following propositions on the point, which read as follows:

The position in law has been explained by this court in Santosh Kumar Vs. Bhai Mool Singh, Milkhiram (India) Private Ltd. and Others Vs.

Chamanlal Bros., and Mechelec Engineers and Manufacturers Vs. Basic Equipment Corporation, . The propositions laid down in these decisions

may be summed up as follows:

(a) If the defendant satisfies the court that he has a good defence to the claim on merits, the defendant is entitled to unconditional leave to defend.

(b) If the defendant raises a triable indicating that he has a fair or bona fide or reasonable defence, although not a possibly good defence, 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, if the affidavit discloses that at the trial he may

be able to establish a defence to the plaintiffs claim, the court may impose conditions at the time of granting leave to defend the conditions being as

to time of trial or mode of trial but not as to payment into court or furnishing security.

(d) If the defendant has no defence, or if the defence is sham or illusory or practically moonshine, the defendant is not entitled to leave defend.

(e) If the defendant has no defence or the defence is illusory or sham or practically moonshine, the court may show mercy to the defendant by

enabling him to try to prove a defence but at the same time protect the plaintiff imposing the condition that the amount claimed should be paid into

court or otherwise secured.

In the instant case, even though the defence that no consideration had been passed on to the revision petitioner is not a possibly good defence, the

revision petitioner/ defendant is entitled to defend the suit. That apart, this Court, by order dated 5.4.2002 made in C.R.P.(P.D.No. 3195 of 2001

(T.RAJMOHAN V. C.CHOCKALINGAM), has held as follows:

The first proviso to Order 37 Rule 5 confers a right on the defendant to seek leave to defend himself, and such right shall not be refused unless

the Court is satisfied that the facts disclosed by the defendant do not indicate that he has a substantial defence to raise or that the defence intended

to be put up by the defendant is frivolous or vexatious.

The first proviso, therefore, makes it clear that the defendant who seeks a leave to defend himself under Order 37 Rule 5, C.P.C., should satisfy

the Court that he has a substantial defence to raise and that the defence is not frivolous or vexatious, in which event, the Court shall not refuse the

leave to defend. But the said proviso further imposes a bar in granting such leave to the extent of amount claimed by the plaintiff, if admitted by the

defendant to be due from him.

Hence, the refusal to permit the revision petitioner/4th defendant to defend the suit in O.S.No. 1732 of 2000, in my considered opinion, is not

justified.

However, taking note of the fact that the revision petitioner/4th defendant is admittedly one of the three ksv

P.D. Dinakaran, J.

partners of the first defendant firm, and finding that he cannot totally wipe away or deny his liability, the revision petitioner/4th defendant is

permitted to defend the suit in O.S.No.1732 of 2000 on condition that the revision petitioner/4th defendant deposits a sum of Rs.28,000/- to the

credit of the above suit to meet the ends of justice, within a period of two weeks from today, failing which, the revision shall stand automatically

dismissed. The revision petitioner/4th defendant is accordingly directed to file his written statement before the learned II Assistant Judge, City Civil

Court, Madras, who shall try the suit and pass appropriate orders on merits, without being prejudiced by any of the observations mentioned

above.

The civil revision petition is ordered accordingly. No costs.