M VENKATASWAMY Vs. MARUDAPURSHPAM

JUDGEMENT

(1.) THIS civil miscellaneous appeal by the plaintiff is against the judgment dated 10.4.1984 in O.S.No.7259 of 1981 on the file of XI Additional Judge, City Civil Court, Madras, directing the plaint to be returned for presentation before proper court, on the ground that the said Court or High Court, in which the said suit was originally instituted as C.S.No.451 of 1977, has no jurisdiction to try the said suit.

(2.) THE suit is for recovery of a sum of Rs.63,650 together with interest, from the respondents personally and against the estate of the deceased Kailasa Gounder whose legal representatives are the said respondents. According to the plaintiff, the 1st defendant is the widow, defendants 2,3 and 5 are the sons and the 4th defendant is the daughter of the said Kailasa Gounder. THE deceased Kailasa Gounder borrowed Rs.33,000 on 18.6.1975 from A.Muthu Goundar, the plaintiff " s father and executed a promissory note in favour of Muthu Gounder promising to repay the amount with interest. Kailasa Gounder borrowed another sum of Rs.17,000 from Muthu Gounder and executed a promissory note on 9.7.1975 in favour of Muthu Gounder, promising to repay the same with interest. In respect of the first promissory note dated 18.6.1975 Kailasa Gounder made payment to the extent of Rs.3,300 and in respect of the 2nd promissory note. He made a payment of Rs.1,700, both on 9.7.1975, and the endorsements, of the said payments find a place in the respective promissory notes. Kailasa Gounder died on 19.2.1976, leving behind the defendants respondents as his heirs. On 25.11.1976 for valuable consideration, Muthu Goundar transferred all his rights by endorsing the promissory notes in favour of the plaintiff and thus, the plaintiff is entitled to recover the amount due under the two promissory notes from the estate of the deceased Kailasa Gounder. THE debts covered by the promissory notes were received by Kailasa Gounder for banking business, which is a joint family trade of himself and the defendants. THE defendants had the benefit of the amounts borrowed and they are liable to pay the amount.

(3.) ON the above said allegations, the plaintiff filed the suit in this Court. The plaintiff also applied for leave to sue and the leave was granted under Clause 12 of the Letters Patent in Application No.3851 of 1977 on 8.12.1977 and the suit was numbered as C.S.No.451 of 1977 on the file of this Court.