DEVASSIA JOSEPH Vs. JOSEPH GEORGE

JUDGEMENT

(1.) This appeal arises from the Judgment and decree of the Sub Judge of Thodupuzha in O.S. No. 97/85.

(2.) The appellants were the defendants in O.S. No. 97/85 before the Sub Court of Thodupuzha. The suit was filed by the respondent as plaintiff for realisation of the amount due under three pronotes dated 1st October 1983, 3rd November 1983 and 3rd December 1983 executed by the defendants in favour of one Kuruvilla Varghese and later endorsed in favour of the plaintiff by the said Kuruvilla Varghese. The facts are that Kuruvilla Varghese was the grand father of the plaintiff. He was a money lender. The defendants borrowed Rs. 40,000 on 1st October 1983 and executed Ext. A-3 pronote. Later on 3rd November 1983 Rs. 15,000 was borrowed and executed Ext. A-4 pronote. Then on 3rd December 1.983 Rs. 25,000 was borrowed and executed Ext. A-5 pronote. These pronotes were endorsed by Kuruvilla Varghese in favour of the plaintiff and as a holder in due course the plaintiff demanded the amount from the defendants by sending a, lawyer notice. Thus as the amount was not repaid the plaintiff filed the suit for realisation of the amount under the three pronotes, with future interest at the rate of 6 per cent per annum and costs. The defendants contended before the Trial Court that even though they executed Exts. A-3 to A-5 pronotes in favour of Kuruvilla Varghese the suit was bad for non joinder of necessary parties. According to them Kuruvilla Varghese is a necessary party. Their case was that the pronotes were not supported by consideration. It was also contended that they had no notice of the endorsement in favour of the plaintiff. Their contention was that the endorsement was made without consideration. Thus according to them the plaintiff was not a holder in due course. They could not send a reply notice as the suit was filed in the meanwhile. After framing necessary issues the lower court examined P.W.I, and D.Ws. 1 to 7 and marked Exts. A-l to A-6 and B-l to B-12. After hearing both sides the lower court considered the matter and held that the plaintiff was a holder in due course and that it was supported by consideration. It was further held that the defendants failed to prove discharge of the amount shown under the three pronotes. Thus the suit was decreed as prayed for. Aggrieved by the Judgment and decree this appeal is filed.

(3.) Counsel for both sides were heard. According to the learned counsel appearing for the appellants Kuruvilla Varghese was a necessary party and that the endorsement in favour of the plaintiff was not supported by consideration. On the basis of S.9 of the Negotiable Instruments Act the learned counsel argued that the burden of proof was on the plaintiff to show that the endorsement was for consideration. The respondents filed cross objections stating that the lower court ought to have allowed costs at the time of decreeing the suit.