SABARIVASAN HARDWARES Vs. V.C. IMPEX

JUDGEMENT

(1.) The revision petitioner herein is the defendant in the suit in OS.No.37 of 2021 (summary suit) on the file of the Sub Court, Ponneri. The said suit was filed by the respondent / plaintiff herein for recovery of money of Rs.3,52,364.00 with interest of 24%. The defendant / petitioner herein appeared and filed objection and also filed IA.No.1 of 2021 by invoking Order 37 Rule 3(5) of CPC seeking permission to grant unconditional leave to defend the suit. The contention of the defendant is that on seeing the summon, he was surprised that the suit was initiated as summary proceedings as per Order 37 Rule 1 of CPC, summon was not in prescribed format and no copy of the document was served on him. As per the provision of law, summon must be served with the copy of the plaint, so the defendant is enable to file application seeking to grant leave to defend, which is mandatory. Further, there is no compliance of Order 37 Rule 2 of CPC, such as non service of copies of document along with summon, which is mandatory and the plaintiff has not approached the court with clean hands and the claim made by him is also false. In fact, he paid Rs.1,50,000.00 both cash and through bank and he is not liable to pay as claimed in the plaint. But the plaintiff, without complying the due process of law, filed the suit by invoking summary procedure and it is not maintainable. As such, he prayed to grant unconditional leave to defend the above suit.

(2.) The said application was objected by the plaintiff stating that the reason assigned by the defendant is not maintainable. He has supplied TMT iron bars worth Rs.4,52,364.00, and to discharge the same, he gave cheques, but the same was not presented for collection as per request made by the defendant. As on date, the outstanding due is Rs.3,44,846.00. Hence, he initiated summary proceeding and it is maintainable in law. Considering both the submissions, the trial court held that the defendant not specifically pleaded that he repaid the amount to the plaintiff and specifically not mentioned the date on which he repaid the amount. Accordingly, the petition was dismissed and on the same day, the suit was decreed in favour of the plaintiff. Challenging the said findings in IA.No.1 of 2022, the defendant has preferred this revision.

(3.) The learned counsel for the revision petitioner argues that he repaid the amount and the plaintiff also accepted in the counter and objection, but the same was not considered by the trial judge and erroneously dismissed the application, which is unfair and the said finding is liable to be set aside.