V. Samuel vs Thabak Finance Corporation and Jhabak

This revision is directed against the order of the learned XV Assistant Judge, City Civil Court, madras in I.A.No.521 of 1993, O.S.No.7895 of

1993.

The defendant/revision petitioner herein in support of the said application contended that he was served with summons in the said suit on

27.11.1993 and he filed Memo of appearance on 6.12.1993 and summons for judgment was served on 13.12.1993. He would state that he has

got a valid defence and triable issues arise for consideration. The suit filed under Order 37, Rule 1, on a voucher is not sustainable in law. The

claim cannot be sustained merely on the basis of a voucher. It is further contended that the alleged borrowing of the sum of Rs.20,000 on

27.6.1990 was false and frivolous. It transpires that the plaintiff had misused his signature on the blank voucher taken by the plaintiff in a prior hire-

purchase transaction which the plaintiff had with his son. The said voucher had been filed at the convenience of the plaintiff to cause wrongful loss

to the defendant.

A counter was filed objecting the petitioner and the plaintiff/respondent herein stated that the petitioner''s dealings and his son''s transaction both

are separate and independent and has nothing to do with each other. The petitioner had taken loan by cheque and further interest had also been

paid by the petitioner and other allegations in the petition were denied.

On consideration of the said contentions the court below held that there was no triable issue and that the petitioner had not made it dear that the

voucher had been falsely manipulated. Hence the above revision petition.

Learned counsel for the petitioner submits that a perusal of the legal notice and the averments contained in the plaint would disclose that the

plaintiff was putting forth conflicting case. It is further stated that when the petitioner had denied the passing of consideration the said issue can be

decided only on the evidence and the refusal to grant leave was erroneous. Learned counsel relies on the following two judgments of the Supreme

Court.

(i) AIR 1990 2218 (SC) ; (ii) M/s. Sunil Enterprises and Another Vs. SBI Commercial and International Bank Ltd.,

Reliance is placed on the above judgments to the effect that when there was a triable issue in the sense that there was a fair dispute to be tried,

the court should not reject the defence of the defendant merely because there was an inherent implausibility or inconsistency.

Learned counsel for the respondent however, refers to the voucher and states that the signature of the defendant is not disputed. There was no

contradiction in the facts as stated in the legal notice and the facts pleaded in the plaint. Therefore, the Court below was justified in rejecting the

petition for granting leave to defend the suit.

I have considered the mutual submissions on behalf of petitioner and the respondent. It is true that there is no serious contradiction between the

facts stated in the legal notice and the facts pleaded in paragraph No.3 of the plaint. The fact that the scooter of the defendant''s son was held as a

security has been pleaded in the plaint also. However having regard to the stand taken by the defendant that he had not received any money, the

disputes can be raised only on framing proper issues and taking evidence. The court below was in error in deciding the issue at the inception itself

as if the defendant did not raise any proper issue and that there is no triable issue. Therefore the order of the court below cannot be sustained. At

this stage learned counsel for the respondent insists that a conditional order may be passed that the plaintiff should produce proper security. The

plaintiff/respondent herein is free to move the court below for such a relief for furnishing security.

With the above observation, this revision petition is allowed. No costs.