BALAKRISHNAN Vs. DAMODARAN NAIR

JUDGEMENT

(1.) THE revision arises from a Small Cause Suit. Defendants are the revision Petitioners and they have come to this Court aggrieved by the judgment and decree in the suit. The Respondent - Plaintiff had filed the suit before the Subordinate Judge's Court, Kozhikode as Small Cause Suit No. 23 of 1975 for realisation of a sum of Rs. 832 43 based of a promissory note executed to the Uma Investments (Private) Limited, which had endorsed the pronote to the Plaintiff. The Defendants had executed the pronote for a sum of Rs. 1,900. When the Uma Investments (Private) Limited endorsed the promissory note to the Plaintiff only a sum of Rs. 832.43 was payable by the Defendants towards the promissory note and the endorsement was for that amount. Some amounts had been earlier paid by the first Defendant to the kuries which have been conducted by the Uma Investments (Private) Limited. Defendants 2 and 3 were sureties for the amounts due from the first Defendant as per the promissory note.

(2.) THE Defendants' contention in the suit was that the suit was bad for non -joinder of parties. Uma Investments (Private) Limited was a necessary party to the suit. According to them, after the execution of the pronote for Rs. 1,900 in favour of the company, a sum of Rs. 750 was paid. No further amount was paid because the company failed to conduct the kury and as such the first Defendant was entitled to have the full dividend. It is also the first Defendant's case that he had subscribed Rs. 650 towards kury Nos. 26 and 27 including the allowable dividend. According to him in the matter of adjustment of the amount due as per the promissory note instead of giving credit to the whole amount of Rs. 650 only a sum of Rs. 317.57, which was the actual amount paid excluding the dividend, has only been given credit. The Defendants point out that regular subscription towards the kuries were not made as the stake holder was in trouble and he was not conducting kuries properly. In the plaint there was an allegation that the Defendants had paid Rs. 25 subsequent to the endorsement of the promissory note to the Plaintiff. This payment was denied by the Defendants. According to them, they had no notice that Uma Investments (Private) Limited had endorsed the promissory note in favour of the Plaintiff and they knew about this only when the Plaintiff sent the registered notice to them.

(3.) SRI V.P. Mohankumar, the learned Counsel for the Petitioners, challenges the decision of the court below. According to him, the court below ought to have held that the first Defendant was entitled for the dividends already credited towards kury Nos. 26 and 27. It is also his case that the suit was bad for non -joinder of parties as Uma Investments (Private) Limited, in favour of whom the first Defendant executed the pronote had not been impleaded as a party. Another contention that was put forward was that the Respondent -Plaintiff had no manner of right to sue the Petitioners. It is urged that the court below failed to note that the Petitioners had no knowledge that the promissory note in question was endorsed to the Plaintiff -Respondent. Another point that is placed before me by the learned Counsel for the Petitioners was that the court below should have held that Uma Investments (Private) Limited is in liquidation and therefore the suit could not have been proceeded with in view of Sections 442 and 446 of the Companies Act.