High Court Kerala High Court

M.V.M.Chitty Corporation vs A.Ramesh Kumar on 4 June, 2010

Kerala High Court
M.V.M.Chitty Corporation vs A.Ramesh Kumar on 4 June, 2010
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

AS.No. 701 of 1993(D)



1. M.V.M.CHITTY CORPORATION
                      ...  Petitioner

                        Vs

1. A.RAMESH KUMAR
                       ...       Respondent

                For Petitioner  :SRI.M.V.JOSEPH

                For Respondent  :SRI.K.C.CHARLES

The Hon'ble MR. Justice THOTTATHIL B.RADHAKRISHNAN
The Hon'ble MR. Justice S.S.SATHEESACHANDRAN

 Dated :04/06/2010

 O R D E R
               THOTTATHIL B.RADHAKRISHNAN
                                         &
                    S.S.SATHEESACHANDRAN, JJ.
                     -------------------------------------------
                     A.S.Nos.701 & 709 OF 1993
                     -------------------------------------------
                 Dated this the 4th day of June, 2010


                                JUDGMENT

Thottathil B.Radhakrishnan, J.

1.A.S.709/93 arises from O.S.66/91 and A.S.701/93 arises from

O.S.67/91 of the Sub Court, Ernakulam.

2.Manikkanamparambil Chitties, a partnership firm, is the

plaintiff in O.S.66/91 and its sister concern M.V.M. Chitty

Corporation, another partnership firm, is the plaintiff in

O.S.67/91. The defendant is the same. These suits were tried

along with another suit of Manikkanamparambil Chitties

against the same defendant. While that was decreed,

O.S.66/91 was decreed in part and O.S.67/91 was dismissed.

3.In both the suits from which these appeals arise, the pleading

in the plaints is only about the execution of a demand

AS.701/93 & 709/93

2

promissory note each and the passing of consideration under

that note. Though it is pleaded that the cause of action is

based on original consideration also, the plaints do not contain

any pleading about any original cause of action independent

of, or collateral to, the execution of the demand promissory

note, on the basis of which, a decree could have been granted

otherwise than on the negotiable instruments on which the

plaintiff has sued.

4.In O.S.67/91, the plaintiff M.V.M. Chitty Corporation pleaded

as having obtained Ext.A11 demand promissory note from the

defendant. A reading of that document would show that the

plaintiff had paid the amount covered by that note to the

defendant by cash. However, when PW1 who is the managing

partner of both the partnership firms gave evidence, he stated

that amounts which were due towards Manikkanamparambil

Chitties under different earlier transactions were taken

together and the amounts released from M.V.M. Chitty

AS.701/93 & 709/93

3

Corporation was adjusted towards such amounts and the

defendant was paid the remaining amount towards the loan for

which he had come. But, PW2, the accountant gave evidence

that the payment was made in his presence and the entire

amount was paid by cheque. This obviously cuts at the root of

the contention of the plaintiff in O.S.67/91.

5.In so far as the appeal of the plaintiff in O.S.66/91 is

concerned, the court below, after appreciating the evidence,

categorically found that going by the evidence of PW1 the

Manging partner, the entries in Ext.A9 document and Ext.A19

entry No.2, and other materials tendered in evidence do not

correlate and even PW1 had fairly conceded to such error.

The court below held that the amount that could be obtained if

the entire figures in Ext.A19 are totalled, is totally different

from that which is reflected in the plaint. Not only that, in our

view, the court below need not have laboured that much,

because there was no pleading in the plaint which would

AS.701/93 & 709/93

4

generate an adjudication on the basis of the original cause of

action since the plaint in O.S.66/91 had also contained only

pleadings regarding the execution of a negotiable instrument

on the basis of which the suit is filed. The mere statement in

the paragraph describing the cause of action that the suit is

filed on the original transaction or original cause of action

does not, in any manner, improve the case in favour of the

plaintiff.

6.It has also come out in evidence before the court below that

the brother of the defendant had taken over the liabilities of

the defendant and the plaintiff had obtained separate decree

against him.

7.With all the aforesaid, we do not find any illegality in the

appreciation of evidence by the court below and there is no

ground to interfere with the findings in the impugned

judgment. The decree, therefore, stands.

AS.701/93 & 709/93

5

In the result, these appeals fail. They are accordingly

dismissed. The parties are directed to bear their respective

costs.

Sd/-

THOTTATHIL B.RADHAKRISHNAN,
Judge.

Sd/-

S.S.SATHEESACHANDRAN,
Judge.

kkb.7/06.