KURIAKOSE Vs. INDIAN TIMBERS AND SAW MILLS

JUDGEMENT

(1.) The appellant is the plaintiff in O.S. No. 201 of 1972 on the file of the Munsiff of Thodupuzha. The suit was one for recovery of a sum of Rs.3,500,.00 with interest and costs, covered by Ext. A-1 cheque for Rs.1,000,.00 dtd. 24/6/1972 and Ext. A-2 cheque for Rs.2,500,.00 dtd. 17/7/1972, both drawn by the 1st defendant in favour of the 2nd defendant and indorsed by him (the 2nddefendant) in favour of the plaintiff. Exts. A-1 and A-2 cheques having been dishonoured by the bank as per Ext. A-6 memo, dtd. 26/6/1972, and Ext.A-6(a) memo dtd. 19/7/1972 respectively, after the issue of Ext. A-3notice of dishonour, dtd. 3/8/1972 to defendants 1 and 2, to which while the 1st defendant did not send a reply, the 2nd defendant sent Ext. A-7 andA-8 replies respectively, dtd. 29/6/1972 and 22/7/1972 informing the plaintiff that the amount would be paid within a short time, the plaintiff brought the suit for recovery of the amounts, which remained without being paid. The Trial Court by its judgment, dtd. 31/1/1974 decreed the suit as prayed for. In appeal, as per the judgment in A.S. No. 14 of 1975 on the file of the District Court, Ernakulam, the plaintiff was given a decree only for the amount covered by Ext. A-1 cheque; and to that effect the decree of the Trial Court was modified. It is aggrieved by the modification by the first appellate court of the Judgment and decree of the Trial Court that the plaintiff has filed this second appeal.

(2.) The cross objection is by the 1st defendant who contends that the notice of dishonour was not received by him within a reasonable time and that Exts. A-1and A-2 cheques were issued by him to the 2nd defendant without consideration.

(3.) In this Court the counsel for the appellant plaintiff submitted that the learned District Judge was clearly in error in disallowing the amount covered by Ext. A-2cheque, taking the view that the plaintiff was not a holder in due course stating that the plaintiff had sufficient reason to believe that there was defect in the title of the person from whom he derived title to the cheques, Exts. A-1 and A-2.