• t f IN THE HIGH COURT OF KERALA AT ERNAKULAM Present: The Honourable Mr0Justice Varghese Kalliath Friday, the 15th January, 1985/26th Magha, 19060 SECOND AfPEAL No: 27 of 1'.j80 (A.So No.374 of 1977 of the District Court, Tellicherry. O.So No.102 of 1975 of the Munsiff's Court, Kuthu.paramba). APPELLANT - Appellant - Plaintiff) Kaniyarakkel Thayikandy Aehra,ff, S/o Mammu Haji, Trader, Irikkoor amsom, Paduvam desom By Advt, Shri PA.Mohammad RESPONDENTS (RESPONDENTS - Defendants) 1. v.¥. Kuriyan, s/o Varkey Vayalil, Clerk, Payam ~som desom, Tellich erry Taluk. 2 PK Joseph, S/o Kuruv.ile, School Master, residing at i =do- -do- j 3. M.2. Varkey, S/o Thom.as, School Master, residing at -do- -de- 4 T.M, Thomas, S/o Thomas, Schoc•l Master, residing at do do, 5. T. Y. Raghavan, s/o Krishnan Nair, Branch-in-charge of the Uma Investment Pvt. Ltd., Iritty Branch, residing in Gokule.m House, Tellicherry amsom deson, Tellicberry By kins Advs M/s Govind Bharathan & Y, R, Lekhe, This second ap~eal having been finally heard on 15 ••2.,1985 the court on the same day delivered the following Tag.es> Kalliath, d 5..0. 27 0£ 1980 - - - - - - ~ - - - - - - -- - - - - - - - Judgment This is an appeal b the plaintiff. He filed the suit on a promiseory note. The defendant contended th.at h.e is not liable to pay the money to the plaintiff under the promissory note. Re contended tb.at the ple.intiff has not got a valid assignment of the promissory note.. The promiss:> ry uo·"e was executed by defendants 1 to 4, in fevour of Uma Investments (:P1~ivate) Limitea.. The 5th defendant is the person in charge of eJbranch of Uma Investments .. 2. Ume Investments (Pvt) Limited owed some money to the ple.intiff. The case is that the pleintiff go en signxmtn assignment of the promissory note executed by defendants 1 to 4 in fe.vour of Uma Investments, towards due the liquidation of the amountLtc, the ple.int iff 5 3. The guesticn that was considered by the courts below was whether t:-iere was a proper and valid assignment cf the ronisay roe. 3oth the courts found that t:ere I ,I • , - - - was no valid assignzsr: a so e six vs i:=nu:s Z the ple.intiff ~eals tc t:ii.: court. ~. The learned counsel for the appellELt e~::a.:.~.eG that the finding of the courts below the.t there ve.s z::o proer assignment is incorrect, It is seen t1at t:::e assignment has been maae by the 5th defendant who was i.::. charge of a branch. It is further stated that the ass~8r.=.-=-=.. was made pursuant to n authorisation. int But the courts below have found that the authorisation is invalid and it is not proved properly. So it is clear that the plaintiff cannot get e. decree on the basis of assignment. The counsel for the a~pellant strongly contended that even if the assignment is invalid, by virtue of sections 8, 9 and 118(g) of the Negotiable Instruments Act, the :i_Jleintiff should be considered as a 'holder in due course' of a nE;gotiable instril!Il.ent. I find it difficult to acce~t specifical ly----V the contention. This point has not beenLr:aised in the pleading. 'rhe only case _pleaded was that the premiss:> ry note has been assi~r.ec to the plainti.ff and by virtue of pat" assignment he is er.iled to a decree. L ooth the courts have considered t::.e :;,cint reised by the ep pellant. =±== 5 The counsel for 1960 K.L.. 1242 (Uba- the appellant referred me to Madhavan Nair, v. Qopalan)£held in that a. case that an assignee of a. promisro ry note will get the rights of the holder of the proisory note and can sue its drawer for the amount covered by it, If there was a valid assignent, certainly the plaintiff can maintain the suit. The question to be answered is whether the plaintiff is a holder in due course under section 9 of the Negotiable Instruments Act. A reading of section 9 makes it clear the case in hand will not come under the Jiu pale of section 9, Roth the courts have found against the plaintiff on this point. I see no merit in this point. I find no merit in the appeal. The appeal fails anc it is dismissed, I make no order as to costs. I 15th February, 1985.