(Prayer: Civil Revision Petition filed under Article 227 of the Constitution of India, challenging the Order dated 31.08.2009 made in O.P.No.262 of 2007, on the file of IX Assistant City Civil Judge, Chennai.)
1. The petitioner in O.P.No.262 of 2007 is the revision petitioner before this Court.
2. The case of the petitioner is that during the month of December 2001, the petitioner had borrowed a sum of Rs.50,00,000/- as unsecured loan for the business need from the respondents and at that time of sanctioning the loan, the respondents have obtained signature in various blank papers and also blank cheques without security. It is further stated that in spite of the major set back in the business, the petitioner has fully repaid the principal amount of Rs.50,00,000/- borrowed from the respondents and the said repayment was made through the cheques and demand draft and to that effect the petitioner has also having all the statement of accounts for repayment of the same.
3. Thus being the case, the respondents were continuously threatening the petitioner to pay the exorbitant interest at the rate of 36%. While being so, on 09.06.2006, the respondents / agents were visited the petitioner s office and threatened that if the petitioner does not pay the interest in the above said percentage, he would have to face the dire consequences and they were returned back. After that, immediately the petitioner had sent a letter to the respondents stating about the incident that was happened on 09.06.2006 and also asked to return all the blank cheques, which were taken at the time of the borrowed loan as the petitioner has already repaid the entire principal amount and those cheques were no longer required by the respondents and also requested him to give the accounts on the interest charged on the said transaction. Though the letter was received by the respondents, but there was no reply from the respondents.
4. Even thereafter, the respondents had continued to demand the exorbitant interest at the rate of 36% and in fact on 17.08.2007, the respondents agents were came to the petitioner s office again and threatened that if the petitioner must pay the interest at the rate of 36%. The petitioner further stated that as per Section 7 of Tamil Nadu Money Lenders Act, the guideline value fixed by the Government of India, the respondents should charged and to receive interest at the rate of 9% or 12% only, but he had demanded the exorbitant interest at the rate of 36%.
5. Therefore, the petitioner has filed the above O.P.No.262 of 2007 before the learned IX Assistant Judge, City Civil Court, Chennai, under Section 5 of Tamil Nadu Prohibition Charging of Exorbitant interest Ordinance 2003 read with Section 8 of Tamil Nadu Money Lenders Act 1957, praying the relief with a direction to the respondents to charge the interest at the rate of 12% only for the loan borrowed.
6. On receipt of the notice in the above case, the respondents were appeared and the first respondent filed his counter statement before the said Court.
7. The case of the respondents is that they denying all the allegations and claim made in the petition by the petitioner.
8. The first respondent also further stated that the petitioner / debtor has filed the present petition with the malafide intention to defraud the respondent. The second respondent being the son of the first respondent has been impleaded as a party in the petition with malafide intention and he is not necessary party in the proceedings.
9. The first respondent come forward by saying that the petitioner had borrowed a sum of Rs.50,00,000/- from the first respondent and had executed a Promissory note dated 14.12.2001 in favour of M/s.Sree Gokulam Investments, a Sole Proprietorship Concern owned by the first respondent. The respondents had also stated that the petitioner had agreed to repay the said loan amount on demand together with interest at the rate of 24% per annum. The said amount was lent to the petitioner on the contractual interest rate agreed by the petitioner. The respondents had also further states that though the petitioner had agreed to repay the said amount with interest at every month from the date of receipt of the said amount, but he has committed default to pay the rate of interest. When the first respondent had demanded to repay the said amount, the petitioner fails to pay the said amount and defaulted.
10. The first respondent also further states that after repeated requests made by the first respondent, the petitioner had paid the interest amount in part and the interest amount accumulated to Rs.12,50,000/- as on 31.12.2002 but the petitioner had paid interest as on 31.12.2002 amounting to Rs.10,68,750/-.
11. Since the petitioner did not regularize his interest to pay the amount, but he had remitted the various sums of Rs.24,81,250/- and after giving credit to all the payments, the outstanding amount of Rs.52,56,103/- to be paid by the petitioner.
12. The first respondent also further states that the petitioner had expressed his inability to pay the balance outstanding amount, and he had executed a promissory note dated 10.12.2004 for a sum of Rs.52,56,603/- in favour of the first respondent and agreed to repay the said amount on demand together with interest at the rate of 24% per annum. When the first respondent demanded the above said amount, the petitioner has sent a letter dated 25.11.2005 along with two cheques for a sum of Rs.2,00,000/- each, and the cheques were deposited for encashed and the same were dishonoured, since there was no amount in his account. Therefore, when the petitioner demanded the said amount, the petitioner agreed to repay the outstanding amount on or before 31.03.2006.
13. Agreed to repay the amount on demand with interest at the rate of 24% per annum, the petitioner had cancelled the earlier promissory note dated 10.12.2004, he could not make the payment as undertook by him on or before 31.03.2006. In order to cover up his inability and to defraud the respondents, the petitioner had started sending letters alleging that he had paid the principal amount and he had given blank cheques as security. The petitioner in order to escape from the civil and criminal liability started alleging that the petitioner had given cheques as security and he had repaid the principal amount. All the above averments are made by the petitioner, after committing default in payment of the interest amount and the amount borrowed.
14. The first respondent also come forward by saying that the petitioner has not make any payment during 2007 and as on date the petitioner has liable to pay a sum of Rs.55,00,000/- together with interest at the rate of 24% per annum. The respondents also denied the allegations dated 09.06.2006 that the respondents agents had visited the petitioner s office and threatened him to pay the said amount at the rate of 36% interest and also equally denied the allegations that on 17.08.2007, the respondents / agents had also visited the petitioner s office. The petitioner had moved this petition on misconception. As per Section 5 of the Act, its contemplates deposit of the amount by the petitioner, but no money has been deposited by the petitioner. Therefore, he prays the said Court to dismiss the said petition, the respondents would be put into extreme loss and hardship.
15. Considering the case of the petitioner, the learned IX Assistant Judge, City Civil Court, Chennai, dismissed the petition on the ground that the petitioner has filed the petition under Section 5 of TNPCEI Act 2003. The learned Judge further states that to substantiating his claim, the petitioner has marked Exs.P3 and P4, in which Ex.P1 is the message confirmation letter dated 18.11.2005 by the petitioner and Ex.P2 is the photo copy of the cheques and other documents for the payments made by the petitioner and Ex.P3 is the letter dated 09.12.2006 sent by the petitioner to the second respondent by demanding to return the documents including the blank cheques and papers by disclosing the borrowal of Rs.50,00,000/- to be repaid. On the other hand, on behalf of the respondents, there was no documents filed and marked and the respondents advanced their arguments through their written argument.
16. The learned Judge has also states that as per the case of the respondents that the claim made by the petitioner is not maintainable for the amount advanced on the basis of the Negotiable instruments exceeding Rs.10,000/-. This aspect was not clarified by the petitioner. That apart it is obvious when an O.P. of this nature is filed there must be a deposit of amount as per Section 5(1) for the admitted amount liable to be paid and the act came into force only in the year 2003, but the cause of action only arose in the year 2001. Apart from this, the claim of the petitioner has also stated that there was a threatening and claiming of the exorbitant interest in contravention to the act is to be substantiated by the petitioner only. But the petitioner has not substantiated the same. The learned Judge has considered the points that the case of the petitioner is that he was paid the above Rs.50,00,000/- borrowed from the respondents during the month of December 2001 itself. But, there was no whisper of information about the dates of the payment and the exorbitant interest collected and calculated with the quantum of money collected. But, it has been simply stated that the amount is charged for excess interest. But, it has been referred to what was the excess payment interest made towards interest so far. Therefore, the learned Judge has come to a conclusion by stating that when all these points taken into account it goes with a clear indication that the claim of the petitioner is apparently appears to be a claim out of time with afterthought idea which cannot be taken as a shelter to gain any relief much less a relief of declaration as sought for and hence the claim of the petitioner was found that the petitioner is not only devoid of merits, but also lacks bonafidity in the eye of law and accordingly the O.P. was dismissed.
17. Heard Mr.S.R.Rajagopal, learned counsel appearing for the petitioner and Mr.L.Rajasekar, learned counsel appearing for the respondents and perused the documents produced before this Court.
18. It is the case of the petitioner that he borrowed a sum of Rs.50,00,000/- from the respondents in the year December 2001 and the same was paid by him. But, the respondents have claimed the exorbitant interest at the rate of 36%. But the counter filed by the respondents which clearly shows that though the amount of Rs.50,00,000/- borrowed from the respondents and the petitioner agreed to repay the said amount together with interest at the rate of 24% per annum.
19. Apart from this, the petitioner has not produced any document before the Court below in respect of the amount already paid by him and whether his payments namely Rs.12,50,000/- paid on 31.12.2002 and Rs.24,81,250/- paid between the period from 01.01.2003 to 10.12.2004 correct and accepted. Apart from this, he has not produced any evidence or documents to prove about the claim made in the petition. Thus being the case, it is made clear that when the petitioner has approached the Court below under Section 5(1) of the TNPCEI Act 2003, he should deposit the amount as per Section 5(1) of the Act which is admitted fact. But he has failed to deposit the amount, but made the claim in the air only that the claim as if the respondents demanded with exorbitant interest at the rate of 36%. It is bounden duty of the petitioner to putforth his case in a proper manner by producing all the payments made by him and illegal demand of Exorbitant rent at the rate of 36% by the respondent. Therefore, in my considered opinion is that the learned Judge was properly considered the case of the petitioner and rightly dismissed the said O.P. Therefore, there is no interference warranted by this Court for the claim of the petitioner and the civil revision petition ought to be dismissed.
20. Accordingly, the civil revision petition is dismissed. No costs.