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Mohamed Ibrahim and anr. Vs. Abdul Azeez, Represented by His Power Agent, M. Mohamed Jaffar - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Reported in(1979)2MLJ394
AppellantMohamed Ibrahim and anr.
RespondentAbdul Azeez, Represented by His Power Agent, M. Mohamed Jaffar
Cases Referred and Raghwaveera Sons v. Mrs. Padmavathi
Excerpt:
.....has invoked section 69 of the transfer of property act, is to file a civil suit and in such suit the court has power to grant injunction and to impose condition for the grant thereof--section 17; [a.p. shah c.j., f.m. ibrahim kalifulla & v. ramasubramanian, jj] proceedings under section 17 power of the tribunal to pass any interim order held, once the possession of the secured asset is taken, there would be no occasion for the tribunal to order redelivery of possession till final determination of the issue. in other words, it is only when the tribunal comes to the conclusion that any of the measures, referred to in section 13 (4) taken by the secured creditor are not in accordance with the provisions of the act and the rules made thereunder, then only the tribunal can restore..........learned counsel for the petitioners states that the subordinate judge has found that there is a triable issue in the suit and having rendered such a finding, the learned judge ought not to have imposed conditions on the petitioners.. in support of this contention, he relies upon the decisions in ms. baba industries v. mehta traders : air1978mad146 . and raghwaveera sons v. mrs. padmavathi : air1978mad81 . what has been held in both those cases is that if the court is satisfied that the defence of the defendant is acceptable though prima facie or that the defence raises a triable issue or that the contentions, raised by the defendant can only be determined after due trial of the case, then in, such circumstances, the court ought not to impose & condition in the matter of the payment of.....
Judgment:

S. Natarajan, J.

1. This revision has been preferred by the defendants in O.S. No. 82 of 1975 on the file of the Courts of the Subordinate Judge, Nagapattinam. That suit was an under-chapter suit and has been filed by the respondent on the foot that he had obtained an assignment of the suit promissory note from the original promisee.

2. The petitioners herein filed an application under Order 37, rule 2, Civil Procedure Code, praying for unconditional leave to defend the suit. The Subordinate Judge declined to grant unconditional leave and granted them conditional leave by calling upon the petitioners to deposit one-half of the suit amount before entering defence. 'It is to challenge the correctness of that order the petitioners have come forward with this revision.

3. Mr. Sridevan, the learned Counsel for the petitioners states that the Subordinate Judge has found that there is a triable issue in the suit and having rendered such a finding, the learned Judge ought not to have imposed conditions on the petitioners.. In support of this contention, he relies upon the decisions in Ms. Baba Industries v. Mehta Traders : AIR1978Mad146 . and Raghwaveera Sons v. Mrs. Padmavathi : AIR1978Mad81 . What has been held in both those cases is that if the Court is satisfied that the defence of the defendant is acceptable though prima facie or that the defence raises a triable issue or that the contentions, raised by the defendant can only be determined after due trial of the case, then in, such circumstances, the Court ought not to impose & condition in the matter of the payment of the plaint amount sought for by the plaintiff into Court as security before the grant of such leave.

4. Mr. Ananthakrishnan Nair, the learned Counsel for the respondent submits that in this case, the Court below has not found the existence of any triable issue in favour of the petitioners as contended by them. He points out that the primary contention put forward by the petitioners in the application was that the suit should have been filed within six months from the date of the cause of action and that not having been done, the suit was not maintainable. This contention has been repelled by the Subordinate Judge for there was no trace of material to even remotely sustain this plea. The other ground put forward by the petitioners was that they are agriculturists and, therefore, they are entitled to claim benefits under Ordinance VIII of 1975. It is only with reference to this plea, the Subordinate Judge has observed that since the plaintiff refutes the contention of the petitioners that they are agriculturists, the question of determining the status of the petitioners as agriculturists will have to wait the trial of the suit, but that will not entitle the petitioners to ask for unconditional leave to defend the suit. Inasmuch as the petitieners had not disputed or denied the execution of the promissory note, the Subordinate Judge has directed the petitioners to deposit one-half of the suit claim before entering defence in the suit.

5. On a consideration of the matter, the contention of the petitioners that the Subordinate Judge has found that their claim raised a triable issue for consideration in the suit cannot be sustained. The plea regarding the status of the petitioners as agriculturists will entitle them only to certain benefits in the matter of scaling down of interest etc. It will not impinge upon their liability to pay the amount claimed under the suit promissory note, especially when the petitioners have not denied their liability under the promissory note. Such being the case, it is futile for the petitioners to say that they have raised a triable issue in the case and in view of the acceptance of their stand by the Court below, they should not have been called upon to deposit one-half of the suit amount as a condition precedent. In that view of the matter, the order of the Court below can well be sustained. The revision will, therefore, stand dismissed. No costs.

6. The petitioners are given two months' time from today to deposit the amount directed by the lower Court to be deposited.


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