SUNDARAM MOTORS Vs. B. LALITHA

JUDGEMENT

(1.) 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 XXXVII, Rule 3(5) of C.P.C. and under Section 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.