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.
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A.S.Nos.701 & 709 OF 1993
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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.