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LATHA SRIDHAR versus R.VIJAYAKUMAR

High Court of Madras

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Latha Sridhar v. R.Vijayakumar - CRP.NPD.334 of 2005 [2007] RD-TN 2539 (30 July 2007)

IN THE HIGH COURT OF JUDICATURE AT MADRAS



DATED : 30-7-2007

CORAM

THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM

C.R.P.NPD No.334 of 2005

and

CMP No.1982 of 2005

Latha Sridhar .. Petitioner vs

R.Vijayakumar .. Respondent Civil revision petition preferred under Sec.115 of the Code of Civil Procedure against the order in I.A.No.2096 of 2003 in O.S.No.5554 of 2002 on the file of the XIV Assistant City Civil Court, Chennai, dated 28.3.2003. For Petitioner : Mr.A.R.Nixon For Respondent : Mr.A.Venkatesan ORDER



The second defendant in a suit for recovery of money, whose request for leave to defend in I.A.No.2096 of 2003 was denied, has filed the revision before this Court.

2.The Court heard the learned Counsel on either side.

3.The respondent/plaintiff filed O.S.No.5554 of 2002 for recovery of money on the strength of two promissory notes, alleging that those promissory notes were executed by the defendants by getting Rs.39,800/-; and that they agreed to pay the principal along with interest at 30 per annum. The instant application was filed seeking leave to defend under Order 37 Rule 3(4) of C.P.C. denying the execution and consideration in the promissory notes. The revision petitioner has further added that the plaintiff was an utter stranger, and she has nothing to do with the promissory note transaction as found in the plaint. The lower Court on enquiry has dismissed the application. Hence, the revision has arisen before this Court.

4.After looking into the materials available and in particular, the order under challenge, this Court is of the considered opinion that the lower Court was misled by a presumption which was drawn by itself, as if the execution of the promissory notes was admitted. Nowhere it is found in the affidavit in support of the application where the leave to defend was sought for, that the petitioner has admitted the execution. Under the circumstances, the lower Court on the impression that the execution of the promissory notes was admitted, had further proceeded to hold that the defence that was raised, was only flimsy, vexatious and in order to drag on the proceedings, and it is not a fit case where leave could be granted. In a given case like this, where even the execution and consideration in the promissory notes are all facts denied, and apart from that, the triable issues are noticed, a duty is cast upon the Court to grant the relief of leave to defend. In the instant case, it should have been done; but, the lower Court failed to do so. Under the circumstances, the order of the lower Court has got to be made undone only by upsetting the same. Accordingly, the order of the lower Court is set aside, and leave is granted to the petitioner. He should appear before the lower Court and get along with the proceedings. This civil revision petition is allowed. No costs. Consequently, connected CMP is closed. To:

The Registrar

City Civil Court

Chennai

nsv/


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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