SAFFIA KHATHOON Vs. KUNHAMBU

JUDGEMENT

(1.) This appeal has been filed by plaintiffs Nos. 1 and 3 to 6 in O. S. No. 98 of 1968 on the file of the Subordinate Judge's Court, Tellicherry. That was a suit for the recovery of a sum of Rs. 11,135.60 from the defendants on the allegation that the said amount was due to the plaintiffs from the defendants under a transaction of loan in respect of which a promissory note had also been executed by the 1st defendant in favour of the 2nd plaintiff. There were originally only two plaintiffs, namely, the 5th appellant herein who figured as the 1st plaintiff and one Mani Hussain Saheb who was the 2nd plaintiff. The second plaintiff died pending the suit and his legal representatives were thereupon brought on record as supplemental plaintiffs Nos. 3 to 6, Though the loan in question had been taken only by the 1st defendant it was alleged by the plaintiffs that the amount borrowed under the transaction was utilised for the purpose of a partnership business that was being conducted by the 1st defendant along with defendants Nos. 2 to 4 in the name and style of Sree Nithyananda Bus Service and that defendants Nos. 2 to 4 had also undertaken liability to repay the loan to the plaintiffs. On this basis a decree was sought against defendants Nos. 2 to 4 also. The 1st defendant filed a written statement in the suit but he subsequently remained ex parte and defendants Nos. 2 to 4 alone contested the suit.

(2.) The suit was specifically based on the original transaction of loan and not on the promissory note because the note was insufficiently stamped and was not therefore admissible in evidence. The lower court took the view that since the passing of consideration and the execution of the promissory note had taken place on the same day they could not be regarded as independent transactions and since the promissory note evidenced by Ext. A-11 was inadmissible in evidence the plaintiffs were not entitled to fall back on the original cause of action in view of S.91 of the Indian Evidence Act. On this reasoning the lower court held that the suit based on the original cause of action was not maintainable and that the plaintiffs were not entitled to get a decree even against the first defendant who had remained ex parte. It was further held by the court below that the claim put forward by the plaintiffs against defendants Nos. 2 to 4 was unsustainable since there was no privity of contract as between the plaintiffs and those defendants. The learned Subordinate Judge was also of the view that the Ist plaintiff in whose favour the 2nd plaintiff had assigned the right to realise the debt from the defendants could not be regarded as a holder in due course or a bona fide transferee of the debt and that the assignment deed evidenced by Ext. A-1 executed by the 2nd plaintiff in favour of the 1st plaintiff was not supported by consideration Finally the lower court also found that the endorsement of payment contained in the promissory note was not properly proved, and that hence the suit was liable to be dismissed on the ground that the plaint claim was barred by limitation. It is against the decree of the court below dismissing the suit on the basis of the aforesaid findings that the plaintiffs aforementioned have come up to this court with this appeal.

(3.) The plaintiff's case is that the Ist defendant had borrowed a sum of Rs. 8,400 on 27th November, 1962, from the 2nd plaintiff and that after deducing certain payments made by the 1st defendant towards the said debt Rs. 11,135.60 was outstanding as due on the date of the plaint. The specific plea put forward in the plaint is that the promissory note was executed by the first defendant only in acknowledgment of the borrowing which had already taken place and since the said note was found to be insufficiently stamped the suit was based on the original contract of loan. In the written statement filed by the 1st defendant he expressly admitted that a sum of Rs. 8,400 had been borrowed by him from the 2nd plaintiff and that a document was executed by him acknowledging the said borrowing to which defendants Nos. 2 and 4 were witnesses. This is what the 1st defendant has said in his written statement: