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IN THE HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD
M.G. PRIYADARSINI, J.
K. Amarender Reddy – Petitioner
Versus
Ashok Kumar Agarwal - Respondent
City Civil Court Appeal No.35 OF 2022
Decided On : 05-07-2024
Loan - Recovery Suit - Order XXXVII, CPC - The court interpreted provisions of Order XXXVII of the CPC, emphasizing the necessity of original documents and the validity of certified copies in summary suits, ultimately affirming the trial court's decree in favor of the plaintiff.
Fact of the Case:
The plaintiff, an advocate, lent the defendant Rs.20,00,000 as a short loan, which the defendant failed to repay. The plaintiff filed a suit for recovery after the defendant's cheques were dishonored. The defendant sought to defend the suit, claiming lack of original documents and proper pleadings.
Finding of the Court:
The court found that the plaintiff provided sufficient evidence through certified copies of documents, and the defendant's claims were deemed frivolous and did not raise triable issues.
Issues: Whether the defendant raised a valid defense to warrant leave to contest the summary suit under Order XXXVII of the CPC.
Ratio Decidendi: The court held that the absence of original documents does not invalidate the suit if certified copies are admissible, and the defendant's defenses were found to be sham and vexatious.
Result: The appeal is dismissed, affirming the trial court's decree in favor of the plaintiff.
JUDGMENT:
(M.G. Priyadarsini, J.) :
Aggrieved by the judgment and decree dated 14.12.2021 in O.S.No.453 of 2021 (hereinafter will be referred as ‘impugned judgment’) passed by the learned I Senior Civil Judge, City Civil Court at Hyderabad (hereinafter will be referred as ‘trial Court’), the defendant preferred the present appeal to set aside the impugned judgment.
2. For the sake of convenience, the parties hereinafter are referred to as they are arrayed before the trial Court.
3. The brief facts of the case, which necessitated the appellant to file the present appeal is that, the plaintiff filed suit for recovery of Rs.45,66,000/- by invoking Order XXXVII of the Civil Procedure Code. The averments of the plaint in brief are as under:
b) On the request of the defendant, the plaintiff has returned all the case bundles on 25.08.2018. The defendant issued two cheques bearing Nos.786709 and 786710 drawn on IDBI Bank, Mahaveer House, Basheerbagh Square, Hyderabad on 19.09.2018. Cheque No.786709 was issued towards repayment of Rs.20,00,000/- and cheque bearing No.786710 was issued for Rs.4,64,000/- towards interest. When the plaintiff presented two cheques, they were dishonoured on 03.10.2018 on the ground that the drawers signature differs in so far as first cheque is concerned and funds insufficient in so far as second cheque is concerned. The plaintiff has issued legal notice dated 15.10.2018 and the same was served on the defendant on 17.10.2018 and 20.10.2018. As the amount covered under the cheques was not paid by the defendant, the plaintiff constrained to file calendar case vide C.C.No.358 of 2018 on the file of II ACMM, Manoranjan Complex and the same is coming up for cross examination of PW1 and at that stage the case was transferred to Nampally, Criminal Courts.
c) While C.C.No.358 of 2018 was pending, the defendant has approached the plaintiff and signed a Memorandum of Understanding dated 03.08.2019 stating that he will pay an amount of Rs.27,44,000/- on or before 31.08.2019. The defendant has also filed a petition in the concerned criminal court on 05.08.2019 but the same was not recorded by the Court in view of the fact that NBWs are pending against the defendant, who was not present. The defendant has presented a petition on 09.08.2019 before the Criminal Court on 09.08.2019 stating that he will pay Rs.33,40,000/- or on before 20.08.2019 but the said petition was also returned. The defendant has executed an undertaking that he will pay Rs.32,60,000/- on or before 31.10.2019 but he did not pay the same. The defendant has also served a copy of the petition dated 06.11.2019 agreeing to pay the amount of Rs.34,70,000/- on or before 21.11.2019 but the said petition was also not taken into consideration by the criminal court. The plaintiff is entitled to recover Rs.20,00,000/- with interest @ 3% per month from the month of February, 2018 till the date of filing of the suit i.e., 23.08.2021 for a period of 42 months and 23 days which amounts to Rs.25,66,000/- and the principal amount of Rs.20,00,000/- totally Rs.45,66,000/-. Hence, this suit.
b) After receipt of summons, the defendant filed pet
Certified copies are admissible in summary suits, and defenses that do not raise triable issues can be dismissed without leave to defend.
Point of Law - Order is contrary to the settled principles of law and once a party has given the cheque for setting right the accounts, then in that case, all such contentions which are not raised at....
A defendant is entitled to unconditional leave to defend if they satisfy the court that they have a substantial defence likely to succeed, or if they raise triable issues indicating a fair or reasona....
The court ruled that leave to defend a summary suit should be granted where defendants raise substantial defenses; however, failure to demonstrate a triable issue leads to dismissal.
The court established that a defendant must present a substantial defense to avoid summary judgment; mere assertions without evidence do not suffice.
Cheques may constitute mode of payment by plaintiff and they may constitute evidence of transaction of loan, but they cannot said to be basis of money suit.
A defendant in a summary suit is entitled to leave to defend if they raise plausible triable issues, even if the defense is not strong.
The main legal point established in the judgment is the court's discretion to grant conditional leave to defend based on the defendant's disclosure of a fair and reasonable defense, ensuring a delica....
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