## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
**PRESENT :**
**THE HONOURABLE MR. JUSTICE P.BHAVADASAN**
**FRIDAY, THE 24TH JUNE 2011 / 3RD ASHADHA 1933**
## **SA.No. 609 of 1999(E)**
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**AS.283/1995 of DISTRICT COURT, THRISSUR OS.1289/1993 of PRINCIPAL MUNSIFF COURT,THRISSUR**
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## **APPELLANT(S): PLAINTIFF/ RESPONDENT**
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***NARAYANAN NAMBOOTHIRI, S/O. RAMAN NAMBOTTHIRI, VELUTHEDATH MANA, KUTTUR VILLAGE AND DESOM, TRICHUR TALUK AND DISTRICT.(DIED)**
***ADDL. 4TH RESPONDENT TRANSPOSED AND 2ND APPELLANT AND ADDL. 3RD & 4TH APPELLANT IMPLEADED)**
- **A3. JAYESH, S/O. LATE NARAYANAN NAMBOOTHIRI, VELUTHEDATH MANA, KUTTUR VILLAGE AND DESOM, TRICHUR TALUK & DISTRICT.**
- **A4. RAJESH, S/O. LATE NARAYANAN NAMBOOTHIRI, DO. DO.**
**ADDL. APPELLANTS 3 & 4 ARE IMPLEADED AS LR'S OF DECEASED SOLE APPELLANT AS PER ORDER DT. 27.2.2009 ON IA. 341/09.**
- **BY ADV. SRI.N.SUBRAMANIAM SRI.M.S.NARAYANAN SMT.M.SANTHI**
## **RESPONDENT(S): DEFENDANTS / RESPONDENT 1 TO 3**
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**1. *RAMAN NAMBOOTHIRI,**
**S/O. LATE RAMAN NAMBOOTHIRI, AVANNAVU MANAKKAL, PERAMANGALAM VILLAGE TRICHUR TALUK AND DISTRICT. (DIED)**
## **S.A. NO.609/1999**
**2. PAPPY @ PARVATHY ANTHERJANAM, W/O. RAMAN NAMBOOTHIRI, D/O. KARUVATTU MANAKKAL NEELAKANDAN SOMATHIRIPAD, RESIDING AT AVANNAVU MANNAKKAL, PERAMANGALAM VILLAGE & DESOM DO. DO.**
**3. A.R.KRISHNAN, S/O.RAMAN NAMBOOTHIRI & PAPPY @ PARVATHY ANTHERJANAM, INSTITUTE OF PAULTRY MANAGEMENT OF INDIA, A.T. VILLAGE, KHAMGAMTEK, P.O. URALIKANCHAN, PUNE DISTRICT, MAHARASHTRA STATE 202 412.**
## ***ADDL. R4 TO R9 IMPLEADED.**
**4. A.R.SREEDEVI, D/O. LATE RAMAN NAMBOOTHIRI W/O.VELUTHEDATH MANAKKAL, V.M.NARAYANAN NAMBOOTHIRI, KUTTOOR VILLAGE, AND DESOM, KUTTOOR 680 013. (TRANSPOS AS ADDL. APPELLANT).**
**5. RAMAN NAMBOOTHIRI, S/O. LATE RAMAN NAMBOOTHIRI, AVANNAVU MANA, PERAMANGALAM VILLAGE AND DESOM P.O. PERAMANGALAM 680 545, TRICHUR DISTRICT.**
**6. ARYA, D/O. LATE RAMAN NAMBOOTHIRI, W/O. M.KRISHNAN UNNI ADIGAL, MADATHIL ILLOM, KURINGIYOOR (VIA) CHAVAKKAD, TRICHUR DISTRICT.**
**7. DEVASENA @ USHA, D/O. LATE RAMAN NAMBOOTHIRI, W/O.K.KRISHNAN NAMBOOTHIRI, FLAT NO.G4 AMAR CLASSIC CO-OPERATIVE HOUSING SOCIETY, SHOLAPUR ROAD, HADAPSAR, PUNE 411 028.**
**8. GOURI, D/O.LATE RAMAN NAMBOOTHIRI W/O.KRISHNAN NAMBOOTHIRI, VADAKKOTTUKUNNATH ILLOM, P.O. KODAKAD (VIA), TRIKARIPUR, KASARAGOD DISTRICT.**
## **S.A. NO.609/1999**
**9. NEELAKANDAN NAMBOOTHIRI, S/O. LATE RAMAN NAMBOOTHIRI, AVANAVU MANA, NOW RESIDING AT A.R. NEELAKANDAN, GLOBE WINES, C/O. B.B.IDNANI, 14, CONNAUGHT ROAD, PUNE-1, PIN 411 001.**
***R1 DIED. R2 & R3 ARE RECORDED AND ADDL. RESPONDENTS 4 TO 9 ARE IMPLEADED AS LR'S OF DECEASED R1 AS PER ORDER DT. 17.2.2009 ON CMP. 557/01.**
**R1 & R2 BY ADV. SRI.V.SANKARA RAJA**
**THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 24/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
**tss**
## **ORDER ON CMP. NO.1693/1999 IN S.A. NO.609/1999**
**DISMISSED 24/06/2011 SD/- P.BHAVADASAN, JUDGE TRUE COPY P.A. TO JUDGE**
**tss**
## **P.BHAVADASAN, J.**
------------------------------------SA No.609 of 1999 ------------------------------------Dated this the 24[th] day of June 2011
## Judgment
Armed with a promissory note, said to have been executed by defendants 1 to 3, the plaintiff approached the court for realisation of a sum of Rs.10,000/- with interest thereon. According to him, he had discharged the liability towards a scholarship loan availed by the first defendant and also met the marriage expenses of the first defendant's daughter and in lieu of that, a promissory note had been executed. At the time of evidence, on finding that the promissory note was insufficiently stamped and inadmissible in evidence, the suit was amended to one based on original consideration.
2. The defendants resisted the suit and filed a written statement pointing out what, according to them, was the real state of affairs. According to them, the loan amount was repaid by the wife of the plaintiff and as
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regards the amount spent for the marriage expenses of their daughter, Gouri, there was no accounts or details given by the plaintiff. They also pointed out that before getting married, Gouri was staying with the plaintiff and his wife, who is none other than her elder sister, for a long period, looking after the children of the plaintiff and in fact, the plaintiff himself had offered the defendants that he would meet the expenses of her marriage. They also pointed out that contrary to that assurance given to them, he demanded the amount and they were constrained to execute a promissory note in his favour. According to them, the date of execution of the promissory note is 15.6.1992 and the time for payment was 15.06.1995 and therefore, the suit filed on 09.11.1993 is premature. On the above pleadings, they prayed for dismissal of the suit.
3. The trial court, on the basis of the above pleadings, raised necessary issues for consideration. The evidence consists of the testimony of PWs 1 and 2 and documents marked as Exts.A1 to A7 from the side of the
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plaintiff. The defendants had DW1 examined and Exts.B1 and B2 marked. The trial court seems to have been greatly impressed by the evidence adduced by the plaintiff and granted a decree as prayed for by him.
4. The aggrieved defendants carried the matter in appeal as AS No.283/95 before the District Court, Thrissur. The lower appellate court, on an evaluation of the evidence on record, found it difficult to accept the findings of the trial court. It may be mentioned here that before the lower appellate court, the defendants produced an additional document marked as Ext.B3, which was also relied on by the lower appellate court in arriving at a conclusion that consideration has not been proved by the plaintiff and therefore, the suit should fail. Accordingly, the decree of the trial court was reversed and the suit was dismissed. Hence the second appeal.
5. Notice is seen raised on the following
questions of law formulated in the second appeal :
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- 1.Does the law require that a plaintiff should ask relief specifically on the basis of original consideration in a suit or will it not be sufficient if the plaint contains all the necessary facts and discloses a cause of action on the original consideration independent of the debt.
- 2.If all the facts necessary for asking alternate reliefs are stated in the plaint, then is it necessary that there should be a formal prayer to that effect ?
- 3.Whether the court below is justified in dismissing the suit on the ground of prematurity based on a document, which has not been marked and which has been found to be inadmissible in evidence.
- 4.Whether partial want or failure of consideration vitiates the instrument only protanto or whether vitiates the document in toto ?
- 5.When a promissory note has been executed subsequently in acknowledgment of a loan and the promissory note was found to be inadmissible, can a suit or recovery of debt on original consideration be
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dismissed ?
6.When a promissory note has been instituted subsequently in acknowledgment of a loan already availed of and when the promissory note was found to be inadmissible, does the contract itself become void or voidness attaches only to the instrument ?
6. The learned counsel for the appellant pointed out that after having admitted the execution of the promissory note, there was little left for the defendants to defend. They ought to have been made liable for the entire amount. It was also pointed out that going by the findings of the lower appellate court, if there was partial discharge of debt, at least a decree ought to have been granted for the balance amount. The finding of the lower appellate court that the suit is premature may not be justified. At any rate, according to the learned counsel for the appellant, a decree ought to have been followed for the balance amount due after setting off the amount covered by Ext.B3, which was produced at the appellate stage. In support of
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his contention that the suit is to be based on original consideration, reliance was placed on the decisions reported in **Ram Raghubir v. United Refineries Ltd** (AIR 1931 Rangoon 139), **Official Assignee v. Kuppuswami Naidu** (AIR 1936 Madras 785) and **Saffia Khathoon v. Kunhambu** (1977 KLT 448). In **L.Sambasiva Rao v. T.Balakotiah** (AIR 1973 AP 342), it was held that even assuming that partial consideration is illegal, a decree could be granted in respect of that consideration, which is legal and which was accepted by the defendants.
7. Per contra, the learned counsel for the respondents, pointed out that having found that the promissory note is not admissible in evidence, the suit was converted into one under the original transaction and that being the transaction, the burden was on the plaintiff to prove that the transaction was supported by consideration. The lower appellate court, on an evaluation of the evidence, found that there is want of evidence in this
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regard and took it as one of the grounds for non-suiting the plaintiff. The learned counsel also pointed out that the suit is premature. As far as the claim now made is concerned, no decree could have been granted for the balance amount. There was no such prayer in the plaint and the relief sought for now cannot be granted.
8. After going through the records and after hearing the learned counsel on both sides, I do not find any reason to interfere with the judgment and decree of the lower appellate court.
9. There can be no dispute that when the promissory note is found to be insufficiently stamped and not admissible in evidence, one can fall back upon the original transaction. No decisions are required in support of the said proposition. Both the courts below have accepted that the plaintiff can sue on the original transaction.
10. The lower appellate court has found that on production of Ext.B3 document, it becomes very clear that
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the amount said to have been paid by the plaintiff to ward off the revenue recovery proceedings in respect of the scholarship loan was discharged and no such debt was subsisting. It was without knowing that fact that the defendants were made to execute the promissory note and therefore, the lower appellate court found that the claim was not justified.
11. As regards the expenses incurred towards the marriage of the first defendant's daughter, the lower appellate court was of the opinion that there is evidence to show that his daughter was staying for a long time with the plaintiff and his wife. One may here remember that the wife of the plaintiff is the daughter of the first defendant and the elder sister of Gouri. The lower appellate court feels that in all probability, the plaintiff and his wife would have offered to meet the expenses of the marriage of Gouri and the defendants might have, then, due to pecuniary circumstances, accepted that gracious conduct. Later on, as found by the lower appellate court, the plaintiff might
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have insisted for the amount and that might have resulted in the execution of the promissory note. The lower appellate court has also found that there is no proof as to what is the actual amount spent towards the marriage expenses of Gouri.
12. It is difficult to say that the transaction is supported by consideration. There is substance in what the lower appellate court has found on the facts and circumstances of the case and on appreciation of the evidence. There is absolutely no evidence to show as to what is the exact amount spent by the plaintiff for the marriage of Gouri. Of course, there is evidence of PW2. Whatever that be, the fact remains that the plaintiff was unable to produce any evidence to show the actual amount spent by him for the marriage of Gouri. The observation made by the lower appellate court that it might have been an after-thought also, cannot be ignored considering the fact that Gouri, for a long time was staying with the plaintiff and his wife, she being the elder sister of Gouri. It is
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significant that both the plaintiff and his wife were employed. So, in all probability, Gouri was looking after their infant children. It was this circumstance that persuaded the lower appellate court to take a view that the plaintiff failed to prove the consideration for the transaction for realising the amount.
13. In the light of this finding, it is unnecessary to go into the questions whether the suit is premature since it is felt that no error could be noticed in the judgment of the lower appellate court and it is not shown that it is either perverse or unwarranted by the evidence on record.
The result is that no substantial questions of law arise for consideration in this second appeal. The second appeal is without any merits and it is accordingly dismissed.
## **P.Bhavadasan, Judge**
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