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Judgment
M. Venugopal, J.—The Civil Revision Petitioner is the first defendant in O.S. No. 3597 of 2000 on the file of the learned XIV Assistant
Judge, City Civil Court, Chennai. The Civil Revision Petitioner herein has filed an I.A. No. 21928 of 2000 before the trial Court as petitioner
under Order 37, Rule 3(5) of C.P.C. and u/s 151 C.P.C. praying to permit him to defend the suit and filed a written statement in due course. The
Respondent/Plaintiff filed a counter stating that the application is not maintainable in law and that the applicant/First Defendant has no triable issues
to defend the suit as contemplated under Order XXXVII, Rule 5 C.P.C. and that the amounts were collected by the Applicant/First Defendant as
Trustee and the amounts were handed over only to him for due performance and the drafts were taken according to the instructions given by the
applicant at the time of booking and that the applicant acted on behalf of the second defendant as booking agent and hence, both are jointly and
severally liable for due repayment and prayed for dismissal of the said application.
2.The learned XIV Assistant Judge, City Civil Court, Chennai has passed order in I.A. No. 21928 of 2000 on 11.09.2001 observing that the
Applicant/first Defendant has no triable issues and that the applicant is not eligible to seek unconditional leave to defend the suit and dismissed the
said application with costs.
3.The learned Counsel for the Revision Petitioner/first Defendant/Applicant contends that the order passed in I.A. No. 21928 of 2000 dated
11.09.2001 is erroneous in law and that the Court below failed to see that the suit for refund of car booking advance paid by the
Respondent/Plaintiff directly to the second defendant is not maintainable as against the Civil Revision Petitioner/first Defendant/Applicant and that
no cause of action arose for the Respondent/Plaintiff as against the Revision Petitioner/First Defendant/Applicant since no amount is due from the
Revision Petitioner/first Defendant/Applicant to the Respondent/Plaintiff.
4.It is the further case of the Revision Petitioner/first Defendant/Applicant that at the time of car booking advance contract (not produced by the
respondent/Plaintiff) between the Respondent/Plaintiff and the second defendant clearly mentioned for refund of car booking advance by the
second defendant alone in case of cancellation and not by the Revision Petitioner/first Defendant and this fact was not properly appreciated by the
Court below and that the Revision Petitioner/first Defendant/Applicant was nowhere in the picture and whether the suit is maintainable against the
Revision Petitioner/first Defendant/Applicant raises a triable issue and the Revision Petitioner/first Defendant/Applicant has a genuine and valid
defence and in this background, the Court below ought to have granted leave to the Civil Revision Petitioner/first Defendant and therefore, the
order passed by the Court below in I.A. No. 21928 of 2000 dated 11.09.2001 is liable to be set aside.
5.The learned Counsel for the Revision Petitioner relied on the decision M/s. Sunil Enterprises and Another Vs. SBI Commercial and International
Bank Ltd., , wherein it is observed as follows:
Code of Civil Procedure 1908, Order 37, Rule 3(5) - Summary suit - Leave to defend- Suit filed based on Bills of Exchange which were
accepted by Appellants - Summary suit filed by Bank - Bank paid out large amounts of Bills of Exchange accepted by party who has already
defaulted - Some of the Bills of Exchange were mere secondary documents - Defence raised by Appellants is not moonshine or illusory -
Appellants have Prima Facie Case - Unconditional leave granted to defendant to defend suit.
6.The learned Counsel for the petitioner cited the decision 2001(4) CTC 178 between N. Prabakaran v. Manager Citibank N.A., 766, Anna
Salai, Chennai-600 002, wherein it is held as follows:
Code of Civil Procedure, 1908, Order 37, Rule 4- Grant of leave to defend in summary suit - Principles governing such leave - Defendant in
summary suit for recovery of money filed petition pleading discharge of total loan amount and relied on 2 letters to prove discharge - Defendant
who seeks leave to defend is not bound to prove his case at time of consideration of grant of leave - Court should find whether defendant has
raised triable issues and whether defence is not sham or illusory - If defendant is able to demonstrate that liability was discharged and documents
relied on by plaintiff was found to be forged after trial suit is bound to be dismissed - Triable issue is one which is proved at time of trial would
result in dismissal of suit and leave to defendant has to be granted - Order of trial court granting conditional leave on payment of Rs. 2 lakhs set
aside and unconditional leave is granted.
The learned Counsel for the revision petitioner pressed into service the decision Life Insurance Corporation of India and Another Vs. Smt. S.
Sindhu, , wherein it is observed that, ''Courts and Tribunals cannot re-write contracts and direct payment of money contrary to terms of contract.''
On the side of the Revision petitioner, the decision 2003 (II) CPJ 176 (NC) between T.V. Sundaram Iyengar & Sons Ltd. v. Dr. Muthuswamy
Duraiswamy and Anr., is relied on and the same runs as follows:
Consumer Protection Act, 1986 - Section 21(b) - Motor Vehicles - Refund - Liability of dealer - Failure to deliver vehicle -Refund of booking
amount claimed - Complaint against manufacturer dismissed by Forum - Hence appeal - State Commission held, manufacturer and dealer jointly
and severally liable to refund deposited amount - Hence Revision - Consumer Forum has no jurisdiction to strike down a condition in contract -
Specific terms of contract, manufacturer liable to refund the money with interest - Dealer not liable for non-refund the money with interest-Dealer
not liable for non-refund of amount by manufacturer, not jointly and severally liable - Order set aside - Manufacturer committed breach of
agreement, liable to refund the amount with interest - Cost awarded.
In 2003 All IHCC 1542, Rajabhau Mahadeorao Rahate v. Dinkar Shantaram Ingole, on the interpretation of Section 115 CPC as amended in
1999, it was held as follows:
(i) The provisions of Section 115 as amended with effect from 1st July, 2002 are applicable from that date to all proceedings pending in High
Court u/s 115 of the Civil P.C.
(ii) There is no right in a litigant to move an application u/s 115 of the Civil P.C. for exercise of the jurisdiction mentioned therein.
(iii) That it being not a right, there is no question of it being saved by recourse to provisions of Section 6 of the General Clauses Act, 1897.
(iv) The provisions of Section 32(2)(i) of the Amendment Act of 1999 do not either by direct legislation or by necessary implication save any such
proceedings from being affected by the Amendment with effect from 01.07.2002.
(v) As a consequence of the above, all revision application, whether pending as on 1st July 2002 or filed thereafter, will have to be dealt with
strictly in accordance with the provisions of Section 115 of the Civil P.C. With effect from 1st July, 2002.
vi) As a further consequence thereof, no revision application against an interlocutory order will be entertainable even if the order is made prior to
1st July, 2002 as moving High Court u/s 115 is held not to be a right.
In V.S. Saini and Another Vs. D.C.M. Ltd., , it is observed as follows:
(A) Civil P.C. (5 of 1908), Order 37, Rule 3(6) Section 96 - Summary suit - Refusal to grant leave - Order whether appealable - Rule 3(6)
specifically stipulates that if leave to defend suit is refused plaintiff shall be entitled to judgment - Thus interlocutory order refusing leave to defend
partakes form of judgment, thereby making it vulnerable to assault only through substantive and regular appeal - Thus defendant can avail second
opportunity to present its defence by filing an appeal.
In Shiv Shakti Coop. Housing Society, Nagpur Vs. Swaraj Developers and Others, , it is held that ''the amendments are procedural in
character and are therefore to be applied to all proceedings that have to be decided''. To put it differently, the amendments have retrospective
applicability in the considered opinion of this Court.
In view of the amendments made to Section 115 of the Civil Procedure Code, a revision can no longer be filed on the basis that the order, if
allowed to stand, would result in failure of justice or cause irreparable injury.
In that view of the matter, without going into the merits of the case, this Court comes to the conclusion that the revision is not per-se
maintainable and this Court opines that the interlocutory order refusing leave to defend partakes the form of judgment and only a regular and
substantive appeal can be filed against the said interlocutory order dated 11.09.2001, if so aggrieved and that the Civil Revision Petitioner/First
Defendant/Applicant will have to pay necessary Court fee in appeal and in that view of the matter, the Civil Revision Petition is dismissed. In the
circumstances of the case, the parties are directed to bear their own costs. The connected miscellaneous petition is closed.