A defendant must establish a valid triable issue to secure leave to defend in a summary suit under the Code of Civil Procedure. Failure to challenge the resulting decree limits further remedies.

ORDER :

P. DHANABAL, J.

1. This Civil Revision Petition has been preferred as against the order passed in I.A. No. 1 of 2021 in O.S. No. 5183 of 2021 on the file of the XIX Assistant City Civil Court at Chennai, wherein the petitioners herein have filed the petition before the Trial Court seeking leave to defend the suit and the same was dismissed. Against which, the present Civil Revision Petition is filed.

2. The petitioners are the defendants in the suit and the respondent herein has filed the suit for recovery of money before the Trial Court as a summary procedure suit, wherein the petitioners have filed petition seeking leave to defend the suit. The respondent-plaintiff, on 30.07.2006, approached the 1st petitioner herein to start the business in the name of M/s. Maha Yoga, for which he needed a commercial place for rent. He also agreed to rent out his first floor building for an amount of Rs. 17,100/- per month and advance amount of Rs. 2,50,000/-. After 11 months, the respondent-plaintiff again wanted to renew the rental agreement and it was orally extended for another 11 months. Thereafter, there was a misunderstanding between them. The matter went up to police station and there the petitioners returned the advance amount and the respondent-plaintiff agreed to vacate the premises. The petitioners never executed any promissory note in favour of the respondent- plaintiff. The alleged pro-note is forged. The documents filed by the respondent are all forged. The petitioners have got valuable defence in the suit to contest on merits and several triable issues arise for consideration before the Court. The respondent conveniently supressed the relationship between him and the petitioners/defendants as tenant and landlord. But the Trail Court dismissed the petition.

3. According to the respondent, the petitioners borrowed a sum of Rs.3,50,000/- as a loan and executed a promissory note and agreed to pay the interest of 18% per annum and thereafter they did not repay the amount and thereby issued legal notice dated 20.11.2019 and the same was received by the petitioners-defendants, but they failed to pay the amount, thereby he filed suit. Before the Trial Court, the petitioners filed petition for leave to defend the case and the same was dismissed for lack of triable issues.

4. Before the Trial Court, no oral or documentary evidences were adduced by either side. The Trial Court after hearing both sides, dismissed the petition.

5. The learned counsel appearing for the petitioners would contend that the respondent herein has filed a suit as against these petitioners for recovery of money based on the promissory note, but the petitioners never executed any such promissory note. They filed petition before the Trial Court under Order XXXVII Rule 3(5) of the Code of Civil Procedure, 1908, seeking leave to defend the suit and the same was dismissed. In fact, the respondent has not served proper summon and the summon does not disclose about the provisions under Order XXXVII and the summon was not served under App.B. Form No. 4 of the Code of Civil Procedure, 1908, but only ordinary summon was served. Since the petitioners denied the execution of pro-note, the Trial Court ought to have allowed the petition. The respondent suppressed that there is a dispute between them in respect of vacating the premises which was rented to the respondent by the petitioners. In the pro-note also there is no reference about the father's name and the address of the parties and thereby the pro-note not at all comes under the definition of negotiable instrument. Therefore, there are triable issues, but the Trial