JOSEPH ZACHARIA Vs. JOSEPH KURIAKOSE

JUDGEMENT

(1.) A. S. Nos. 188 and 284 of 1984 are appeals filed respectively by defendants 1 and 2 in O. S. No. 247 of 1982 on the file of the Sub Judge, Kottayam. The plaintiff is the lst respondent in both the appeals. Plaintiff has also filed a cross appeal in A. S. No. 188 of 1984.

(2.) Plaintiff filed the suit on the basis of Ext. A1 pronote and Ext. A2 agreement styled as Sammathapathram. Ext. Al is dated 16-11-1974 and was executed by the first defendant in the name of plaintiff. Ext. A2 is dated 12-7-1979 and was executed jointly by the plaintiff and 2nd defendant. Admittedly the promissory note was executed for and on behalf of the 2nd defendant. It was towards money due to the 2nd defendant from first defendant that the promissory note was executed by plaintiff has alleged that the promissory note was in his possession from the very beginning with the consent and knowledge of the 2nd defendant. It is his further case that as per Ext. A2 agreement executed jointly by the plaintiff and 2nd defendant, plaintiff was given the right to realise the money due under the promissory note and as such he is entitled to enforce the promissory note in his own right. On and after execution of Ext. A2 agreement 2nd defendant has no right to claim the amount covered by the pro note. Plaintiff relied upon certain endorsements contained in Ext. Al promissory note and contended that the suit is not barred by limitation. On the basis of Exts. Al and A2 plaintiff prayed that he may be granted a decree for the amount due under the promissory note with 18% interest against both the defendants.

(3.) Defendants filed separate written statements contesting the claim. First defendant contended that the plaintiff is hot entitled to maintain the suit as the promissory note on which it is based is admittedly one executed for an on behalf of the second defendant. He has fully discharged his liability under the pro note by payment to the second defendant. A detailed statement of accounts showing the payments made by the 1st defendant to the 2nd defendant was annexed to the written statement. The claim for 18% interest was disputed. It was contended that even though in the promissory note the rate of interest shown is 18% there was a contemporaneous agreement between the first defendant and second defendant to pay only 12% interest. First defendant contended that he was not aware of Ext. A2 agreement and that no notice was given to him of the terms and conditions of the agreement. As such Ext. A2 is not binding on him. First defendant, however, admitted the execution of the promissory note and his liability to the second defendant to pay the amount covered by Ext. Al.