SA/27/1980 of KANIYARAKKAL THAYIKANDY ASHRAFF, Vs V.V.KURIYAN on 15 February 1985

1. v.¥. Kuriyan,s/o Varkey Vayalil,

Clerk, Payam ~som desom,Tellich erry Taluk.

2 PKJoseph, S/o Kuruv.ile, School Master, residing at =do--do-

3. M.2. Varkey, S/o Tho[m.]as, School Master, residingat -do--de-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 kinsAdvs M/sGovind 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 ij Tag.es> Kalliath, d

5..0. 27 0£ 1980

- - - - - -~ - - - - - - -- - - - - - - -Judgment This is an appeal b the plaintiff.He filed the suiton a promiseory note.The defendant contended th.ath.e isnot liable to pay the money to the plaintiff under thepromissory note.Re contended tb.at the ple.intiff has notgot a valid assignmentof the promissory note..The"promiss:> ry uo·e was executed by defendants1 to 4, infevour of Uma Investments(:P1~ivate) Limitea..The 5thdefendant is the person in charge of eJbranchof UmaInvestments ..

2. Ume Investments(Pvt)Limited owed some moneyto the ple.intiff.The case is that the pleintiff go ensignxmtnassignment of the promissory note executedby defendants1 to 4 in fe.vour of Uma Investments, towardsduethe liquidation of the amountLtc, the ple.int iff 5

3. The guesticn that was considered by the courtsbelow was whether t:-iere was a proper and valid assignmentcf the ronisay roe.3oth the courts found thatt:ere ,I

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was no valid assignzsr: a soe six vs i:=nu:s Z

the ple.intiff ~eals tc t:ii.: court.

The learned counsel for the appellELt e~::a.:.~.eG

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that the finding of the courts below the.t there ve.s z::o proer assignment is incorrect,It is seen t1att:::eassignment has been maae by the 5th defendant who was i.::.

charge of a branch.It is further stated that the ass~[8]r.=.-=-=..

was made pursuant to n authorisation. intBut the courts below have found that the authorisation is invalidand it is not provedproperly.So it is clear that theplaintiff cannot get e. decree on the basis of assignment.The counsel for the a~pellant strongly contendedthateven if the assignment is invalid, by virtue of sections8,9 and118(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~tspecifical ly----Vthe contention.This point has not beenLr:aised in thepleading.'rhe only case_pleaded was that the premiss:> rynote has been assi~r.ec to the plainti.ff and by virtue ofpat"assignment he is er.iled to a decree. L ooth the courtshave consideredt::.e:;,cint reised by the ep pellant.

5The counsel forthe appellant referred me to1960 K.L..1242(UbaMadhavan Nair,a.-v. Qopalan)£held inthatcasethatan assignee of a. promisro ry note will getthe rights of theholder of the proisory note and can sue its drawer for theamount covered by it,If there was a valid assignent,certainlythe plaintiff can maintain the suit.The questiontobe answeredis whether the plaintiff is a holder in duecourse under section 9 of the Negotiable Instruments Act.

A readingof section 9 makes it clearthe case in hand willnot come under the Jiu pale of section 9,Roththe courtshave found against the plaintiff on this point.I seeno 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.

15th February,1985.