IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN FRIDAY, THE 4TH JUNE 2010 / 14TH JYAISTHA 1932 AS.No. 701 of 1993(D) --------------------- OS.67/1991 of PRINCIPAL SUB COURT,ERNAKULAM .................... APPELLANT/PLAINTIFF IN O.S.: -------------- M.V.M.CHITTY CORPORATION, REPRESENTED BY ITS MANAGING PARTNER, MATHEW, AGED 56, C/O.MANIKKANAMPARAMBIL VARKEY, NADUVILA VEETTIL, UDAYAMPEROOR MURI, MANAKUNNAM VILLAGE. BY ADV. SRI.M.V.JOSEPH SRI.M.V.JOHN RESPONDENT/DEFENDANT IN O.S.: --------------- A.RAMESH KUMAR, AGED 37, SON OF ARAVINDAKSHA MENON, 'USHUS', KADAVANTHARA DESOM, ELAMKULAM VILLAGE, KANAYANNUR TALUK. ADV. SRI.K.C.CHARLES THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 04/06/2010, ALONG WITH AS NO.709 OF 1993,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOTTATHIL B.RADHAKRISHNAN & S.S.SATHEESACHANDRAN, JJ. ------------------------------------------- A.S.Nos.701 & 709 OF 1993 ------------------------------------------- Dated this the 4th day of June, 2010 JUDGMENT Thottathil B.Radhakrishnan, J. 1.A.S.709/93 arises from O.S.66/91 and A.S.701/93 arises from O.S.67/91 of the Sub Court, Ernakulam. 2.Manikkanamparambil Chitties, a partnership firm, is the plaintiff in O.S.66/91 and its sister concern M.V.M. Chitty Corporation, another partnership firm, is the plaintiff in O.S.67/91. The defendant is the same. These suits were tried along with another suit of Manikkanamparambil Chitties against the same defendant. While that was decreed, O.S.66/91 was decreed in part and O.S.67/91 was dismissed. 3.In both the suits from which these appeals arise, the pleading in the plaints is only about the execution of a demand AS.701/93 & 709/93 2 promissory note each and the passing of consideration under that note. Though it is pleaded that the cause of action is based on original consideration also, the plaints do not contain any pleading about any original cause of action independent of, or collateral to, the execution of the demand promissory note, on the basis of which, a decree could have been granted otherwise than on the negotiable instruments on which the plaintiff has sued. 4.In O.S.67/91, the plaintiff M.V.M. Chitty Corporation pleaded as having obtained Ext.A11 demand promissory note from the defendant. A reading of that document would show that the plaintiff had paid the amount covered by that note to the defendant by cash. However, when PW1 who is the managing partner of both the partnership firms gave evidence, he stated that amounts which were due towards Manikkanamparambil Chitties under different earlier transactions were taken together and the amounts released from M.V.M. Chitty AS.701/93 & 709/93 3 Corporation was adjusted towards such amounts and the defendant was paid the remaining amount towards the loan for which he had come. But, PW2, the accountant gave evidence that the payment was made in his presence and the entire amount was paid by cheque. This obviously cuts at the root of the contention of the plaintiff in O.S.67/91. 5.In so far as the appeal of the plaintiff in O.S.66/91 is concerned, the court below, after appreciating the evidence, categorically found that going by the evidence of PW1 the Manging partner, the entries in Ext.A9 document and Ext.A19 entry No.2, and other materials tendered in evidence do not correlate and even PW1 had fairly conceded to such error. The court below held that the amount that could be obtained if the entire figures in Ext.A19 are totalled, is totally different from that which is reflected in the plaint. Not only that, in our view, the court below need not have laboured that much, because there was no pleading in the plaint which would AS.701/93 & 709/93 4 generate an adjudication on the basis of the original cause of action since the plaint in O.S.66/91 had also contained only pleadings regarding the execution of a negotiable instrument on the basis of which the suit is filed. The mere statement in the paragraph describing the cause of action that the suit is filed on the original transaction or original cause of action does not, in any manner, improve the case in favour of the plaintiff. 6.It has also come out in evidence before the court below that the brother of the defendant had taken over the liabilities of the defendant and the plaintiff had obtained separate decree against him. 7.With all the aforesaid, we do not find any illegality in the appreciation of evidence by the court below and there is no ground to interfere with the findings in the impugned judgment. The decree, therefore, stands. AS.701/93 & 709/93 5 In the result, these appeals fail. They are accordingly dismissed. The parties are directed to bear their respective costs. Sd/- THOTTATHIL B.RADHAKRISHNAN, Judge. Sd/- S.S.SATHEESACHANDRAN, Judge. kkb.7/06.