An order refusing leave to defend in a summary suit is maintainable in a revision petition. Where a defendant raises triable issues on facts and law that require adjudication, leave to defend should be granted, optionally conditioned upon partial deposit if liability is partially admitted.

Order :

N. MALA, J.

(1) This Civil Revision Petition is filed against the order dated 05.08.2024, passed in IA No.3/2023 in OS.No.7836/2021, by the learned XIX Additional Judge, City Civil Court, Chennai, rejecting the petitioners' application seeking unconditional leave to defend the main suit under Order 37 Rule 3[5] of CPC.

(2) For convenience, the parties are referred to as arrayed in the Civil Revision Petition.

(3) The facts relevant, are as follows:-

(4) The respondent herein, filed a suit in OS.No.7836/2021, seeking a money decree against the petitioners herein, for a sum of Rs.59,70,000/- together with interest and cost, on the basis of a Promissory Note dated 26.04.2016. According to the respondent, a sum of Rs.30 lakhs was advanced as loan to the petitioners through RTGS on various dates, viz., 26.04.2016, 27.04.2016, 21.06.2016, 22.06.2016 and 23.06.2016. According to the respondent, evidencing such borrowal, the petitioners executed a Promissory Note on 26.04.2016. The respondent contended that the petitioners paid a sum of Rs.7.50 lakhs towards interest through NEFT and cash on various dates, the last of such payment was received on 07.11.2018. The respondent further contended that the petitioners thereafter failed to pay any amount towards principal or interest and therefore, as on 30.04.2019, a sum of Rs.43.50 lakhs was outstanding towards principal and interest. The respondent contended that despite his best efforts to recover the above said outstanding amount, the petitioners failed to pay and therefore, he was constrained to file the aforesaid suit under Order 37 Rules 1 and 2 of CPC, for a judgment and decree, directing the petitioners to jointly and severally pay a sum of Rs.59.70 lakhs, to the respondent and to pay interest at 24% per annum, on the aforesaid sum from the date of plaint till the date of realisation.

(5) The petitioners contended that on the date of the Promissory Note, i.e., 26.04.2016, only a sum of Rs.5 lakhs was advanced and the balance was paid on various dates. The petitioners contended that the Promissory Note was a fabricated document. The petitioners further contended that the last of the payments was made on 23.06.2016, and therefore, the suit claim was barred by limitation, having been filed beyond three years from the date of last payment. The petitioners' case was that only to bring the suit within the limitation period, the plea was taken that the last payment was received on 07.11.2018. The petitioners contended that the suit filed on the basis of a copy of the original pro-note was not maintainable and further contended that they did not receive any summons in the suit. The petitioners therefore prayed that since arguable issues were raised in the suit, leave to defend ought to be allowed.

(6) The respondent in the counter to IA.No.3/2023, denied the allegations made in the affidavit and stated inter alia that the issuance of the cheque dated 07.11.2018 for a sum of Rs.2,46,000/- was a clear acknowledgement of debt and therefore, the suit was not barred by limitation. The respondent contended that the cheque issued by the petitioners on 18.01.2019, acknowledging the debt, was dishonoured and therefore, criminal proceedings under Section 138 of the Negotiable Instruments Act, were initiated and that the present petition was only to drag on the main suit. The respondent contended that no substantial and triable issues were raised by the petitioners in the main suit