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CASE NO.: Appeal (civil)  480 of 2008

PETITIONER: S.Raju

RESPONDENT: C.Sathammai

DATE OF JUDGMENT: 17/01/2008

BENCH: G.P.Mathur & Aftab Alam

JUDGMENT: JUDGMENT

O R D E R [Arising out of SLP (C) No.128/2007]

1.      Heard counsel for the appellant.  No one appears for the  respondent despite notice. 2.      Leave granted. 3.      This appeal is directed against the orders passed by the  City Civil Court and the High Court denying the appellant- defendant the leave to defend the suit filed by the respondent  under Order 37 of the Code of Civil Procedure (\021CPC\022 for  short). 4.      The respondent-defendant instituted the suit on the basis  of a promissory note, dated November 11, 2004, for  Rs.1,50,000/- along with interest at the rate of 25% per annum  allegedly signed by the appellant in the presence of two  witnesses. 5.      On notice by the court, the appellant filed a petition  under Rule 3, Order 37 of CPC seeking leave to defend the suit  without any condition.  On behalf of the appellant, it was stated  that the promissory note, forming the basis of the defendant\022s  claim was completely sham and fabricated. It was further stated  that he was an uneducated and illiterate person, engaged in the  work of civil construction, as a contractor.  He lived in the same  locality and had agreed to build the house of the appellant\022s  son. He completed the construction of the house  at a relatively  much cheaper rate of Rs.430/- per square ft.  The defendant- respondent/her son used to take his signatures on blank stamp  papers telling him that those were for receipts of the payments  made to him and were required for income tax purposes.  Being  a simple, uneducated person he put his signatures on blank  papers without any question and in good faith.  It was alleged  that one of the signatures made by him   was later used to forge  the promissory note for filing the suit.   6.        It was also stated on his behalf that the alleged signatures  on the promissory note were not his signatures as would be  apparent from the fact that there were two signatures on the  promissory note, one in English and the other in Telugu. 7.      The trial court noted that the contentions raised by the  appellant for defending the suit were quite inconsistent.  On the  one hand, he denied the signatures on the promissory note as  his signatures and, on the other hand, it was stated that his  signatures were obtained on blank stamp papers on the pretext  that those were to be made into receipts for payments made to  him and one of those signatures was used for creating the  promissory note.  The trial court accordingly rejected the  petition filed by the appellant under Order 37, Rule 3, CPC.  8.     Against the order passed by the trial court, the appellant

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moved the High Court in revision but the High Court dismissed  the revision and affirmed the order passed by the trial court  primarily on the ground that there was an inherent  inconsistency in the case of the appellant.   9.    On hearing the counsel for the appellant and on going  through the materials on record, we feel that the trial court and  High Court have taken a rather technical view of the matter.   On a careful consideration of the matter, we are satisfied, that in  the overall facts and circumstances of the case, the petitioner  ought to have at least been allowed to defend the suit, subject to  the condition of depositing a part of the plaintiff\022s claim.  We  accordingly allow the appeal, set aside the orders of the trial  court and the High Court and direct that the petitioner may be  granted leave to defend the suit subject to deposit of  Rs.50,000/- in the trial court.  The leave shall be granted to the  appellant provided the amount, as directed above, is deposited  within two months from today.