S.Raju
Vs. C.Sathammai [2008] Insc 47 (17 January 2008)
G.P.Mathur
& Aftab Alam
O R D
E R [Arising out of SLP (C) No.128/2007]
1.
Heard counsel for the appellant. No one appears for the respondent despite
notice.
2.
Leave granted.
3.
This appeal is directed against the orders passed by the City Civil Court and the High Court denying the
appellant- defendant the leave to defend the suit filed by the respondent under
Order 37 of the Code of Civil Procedure (;CPC for short).
4. The
respondent-defendant instituted the suit on the basis of a promissory note,
dated November 11, 2004, for Rs.1,50,000/- along with
interest at the rate of 25% per annum allegedly signed by the appellant in the
presence of two witnesses.
5. On
notice by the court, the appellant filed a petition under Rule 3, Order 37 of
CPC seeking leave to defend the suit without any condition.
On
behalf of the appellant, it was stated that the promissory note, forming the
basis of the defendants claim was completely sham and fabricated. It was
further stated that he was an uneducated and illiterate person, engaged in the
work of civil construction, as a contractor. He lived in the same locality and
had agreed to build the house of the appellants son. He completed the
construction of the house at a relatively much cheaper rate of Rs.430/- per
square ft. The defendant- respondent/her son used to take his signatures on
blank stamp papers telling him that those were for receipts of the payments
made to him and were required for income tax purposes. Being a simple,
uneducated person he put his signatures on blank papers without any question
and in good faith. It was alleged that one of the signatures made by him was
later used to forge the promissory note for filing the suit.
6. It
was also stated on his behalf that the alleged signatures on the promissory
note were not his signatures as would be apparent from the fact that there were
two signatures on the promissory note, one in English and the other in Telugu.
7. The
trial court noted that the contentions raised by the appellant for defending
the suit were quite inconsistent. On the one hand, he denied the signatures on
the promissory note as his signatures and, on the other hand, it was stated
that his signatures were obtained on blank stamp papers on the pretext that
those were to be made into receipts for payments made to him and one of those
signatures was used for creating the promissory note. The trial court
accordingly rejected the petition filed by the appellant under Order 37, Rule
3, CPC.
8.
Against the order passed by the trial court, the appellant moved the High Court
in revision but the High Court dismissed the revision and affirmed the order
passed by the trial court primarily on the ground that there was an inherent
inconsistency in the case of the appellant.
9. On
hearing the counsel for the appellant and on going through the materials on
record, we feel that the trial court and High Court have taken a rather
technical view of the matter.
On a
careful consideration of the matter, we are satisfied, that in the overall
facts and circumstances of the case, the petitioner ought to have at least been
allowed to defend the suit, subject to the condition of depositing a part of
the plaintiffs claim. We accordingly allow the appeal, set aside the
orders of the trial court and the High Court and direct that the petitioner may
be granted leave to defend the suit subject to deposit of Rs.50,000/- in the
trial court. The leave shall be granted to the appellant provided the amount,
as directed above, is deposited within two months from today.
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