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Kottayam Bank Ltd. Vs. Ahammed Kannu Rawther - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKerala High Court
Decided On
Case NumberA.S. No. 277 of 1956
Judge
Reported inAIR1957Ker164
ActsCode of Civil Procedure (CPC) , 1908 - Order 3, Rule 1 - Order 6, Rules 2 and 14 - Order 29, Rule 1; Evidence Act, 1872 - Sections 101-104
AppellantKottayam Bank Ltd.
RespondentAhammed Kannu Rawther
Appellant Advocate K.P. Abraham, Adv.
Respondent Advocate T.S. Krishnamurthy Iyer, Adv.
DispositionAppeal allowed
Cases ReferredAssocn. v. Karim and Brothers
Excerpt:
.....is apparent from the forms given in appendix a to the civil procedure code where under the head, title of suits',we find, a. have been satisfied, for that provision only says that when a suit is brought by or against a corporation the pleadings may be signed and verified on behalf of the corporation by the persons specified. , and even if the cause title is to be read as meaning that the suit is brought on its behalf by its mukthiyar, it is as we have shown, a perfectly good suit. the court below got over this difficulty by saying that the defendant had failed to discharge the burden that lay on him although the plaintiff had been guilty of putting forward a different case in the evidence from what had been stated in the pleading. a, and in the plaint although it literally means 'cash..........1 and 2, the head clerk and the agent of the athirampuzha branch of the bank in whose favour the suit promissory note, ext. a was executed have spoken to its execution by the defendant in their presence and have also spoken to the manner in which consideration passed. the defendant had admittedly drawn a cheque, ext. e, for rs. 5,000/- on some other bank, and cashed it at the athimmpuzha branch of the plaintiff bank, but admittedly agate the cheque was dishonoured, and when the defendant was called upon to repay the money he made payment in part, and, after a lapse of two years, not being able to pay the balance, executed the suit promissory note for the amount due. this evidence is supported by the entries in the books of the bank and by several other documents, some signed by the.....
Judgment:

Raman Nayar J.

1. In answer to a suit on the foot of a promissory note the defendant, who is the respondent before us, denied execution and consideration, and contended also that the suit was not by the promisee, a banking company, but only by its power of attorney agent who had no right to sue, and that the suit was therefore liable to rejection. The Court below found against the defendant both on the question of execution and consideration, but, surprisingly enough, holding in his favour on his contention regarding the frame of the suit, dismissed the suit. The plaintiff has therefore appealed.

2. The cause title of the plaint which is in Malayalam may be translated as follows : 'The Kottayam Bank Ltd., For the above Bank its Mukthiyar C. K. Parameswara Panicker'. In the face of this cause title we find it difficult to understand how the Court below was able to say, 'In the present case it admits of no doubt that the plaintiff is C. K. Pavameswara Panicker and not the Kottayam Bank Ltd.' Even if the cause title is to be read as the 'Kottayam Bank Ltd., by its Mukthiyar C. K. Parameswara Panicker', as Mr. Krishnamurthi Iyer for the defendant would have us read it there is nothing in law to prevent a corporation from suing by its agent as provided by Order III, Rule 1 of the C. P. C. That the cause title in the present plaint would be a perfectly good cause title in such a suit is apparent from the forms given in Appendix A to the Civil Procedure Code where under the head, 'Title of Suits', we find, 'A. B. (add description and residence'), by his attorney C. D. (add description and residence.) That Shir Parameswara Panicker was the duly constituted attorney of the Bank was alleged in paragraph 5 of the plaint and was in fact admitted in the written statement. There is no question here whether the requirements of Order 29, Rule 1, C. P. C. have been satisfied, for that provision only says that when a suit is brought by or against a corporation the pleadings may be signed and verified on behalf of the corporation by the persons specified. therein. That provision, as has been pointed out in Calico Printers' Assocn. v. Karim and Brothers, AIR 1930 Bom 566 (A), is only permissive and does not preclude a corporation from taking advantage of Order 3, Rule 1 and Order 6, Rule 14 and having its pleadings signed by a duly constituted agent. Moreover no objection was taken on the score that the plaint is this case was not signed by the proper person. Reading the cause title we have no doubt that the plaintiff in this case is the Kottayam Bank Ltd., and even if the cause title is to be read as meaning that the suit is brought on its behalf by its Mukthiyar, it is as we have shown, a perfectly good suit.

3. On the question of execution and consideration P. Ws. 1 and 2, the head clerk and the agent of the Athirampuzha branch of the Bank in whose favour the suit promissory note, Ext. A was executed have spoken to its execution by the defendant in their presence and have also spoken to the manner in which consideration passed. The defendant had admittedly drawn a cheque, Ext. E, for Rs. 5,000/- on some other Bank, and cashed it at the Athimmpuzha branch of the plaintiff Bank, but admittedly agate the cheque was dishonoured, and when the defendant was called upon to repay the money he made payment in part, and, after a lapse of two years, not being able to pay the balance, executed the suit promissory note for the amount due. This evidence is supported by the entries in the books of the Bank and by several other documents, some signed by the defendant himself, and referred to in paragraphs ft to 9 of the judgment of the lower Court, and as against this there was only the bare denial of the defendant who denied everything, even the receipt of the notice issued to him by the plaintiff Bank before the suit although there is the postal acknowledgment Ext. F1 to prove it. It is hardly necessary to consider the question further. The Court below was quite right in believing the evidence of P. Ws. 1 and 2 supported as it was by documentary evidence, and the learned counsel for the defendant has not been able to advance any reason to show that it erred.

4. What is argued before us is that both the promissory note and the plaint recite that the promissory note was for cash consideration and that therefore the evidence adduced on behalf of the plaintiff regarding the actual manner in which consideration passed should not be accepted since it is contrary to the pleading. The execution having been duly proved the burden, it is conceded, is on the defendant to prove want of consideration especially in the case of a negotiable instrument but it is said that that burden is discharged by the very fact that the plaintiff, evidence on the point is contrary to the averments in the plaint. The Court below got over this difficulty by saying that the defendant had failed to discharge the burden that lay on him although the plaintiff had been guilty of putting forward a different case in the evidence from what had been stated in the pleading. But we are inclined to think that the phrase, 'words in Malayalam omitted'' used both in the promissory note Ext. A, and in the plaint although it literally means 'cash received', is used not in the purely literal sense but, as it is often used, as meaning, ''for consideration bad and received''. In this view we do not think that there is any conflict between the case in the plaint and the evidence adduced by the plaintiff.

5. It is next said that the 'defendant was taken by surprise by the change in the plaintiff's case regarding the passing of consideration and that this prejudiced him in the discharge of the burden that lay on him. There is absolutely no merit in this contention having regard to the protracted course, of the trial. The evidence on the plaintiff's side was closed on 28-1-1955 and it was only on 16-6-1955, five months later, that the defendant opened his evidence. It is idle to say that he had no notice of what the plaintiffs' case was and 110 opportunity to meet it.

6. We allow the appeal and decree the plaintiffs' suit with costs both here and in the Court below.

7. Before leaving the case we are constrained to animadvert on the very dilatory manner in which this simple suit, the actual trial of which should not have taken more than a few hours was tried by the Court below. The suit was filed on 17-6-1952. The written statement was filed, seven months later, after many adjournments. Then, after nine months, the actual trial was commenced on 8-10-1953 when P. W. 1 was examined. The examination of P. W. 2 began on 19-11-1953 and was closed only on 28-1-1955, a year and two months later. The defence evidence was commenced on 16-6-1955 and was closed on 1-7-1955. Then, after three adjournments, arguments were heard on the 21st and 22nd July 19.35, and judgment was pronounced on 1-8-1955 more than three years after the institution of the suit.


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