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Lakshmana Chetty Vs. M.S. Askar Ahmed and anr. - Court Judgment

LegalCrystal Citation
SubjectCommercial
CourtChennai High Court
Decided On
Case NumberC.R.P. No. 328 of 1975
Judge
Reported inAIR1978Mad310; (1978)1MLJ342
ActsCode of Civil Procedure (CPC) , 1908 - Order 1, Rule 10 and 10(2)
AppellantLakshmana Chetty
RespondentM.S. Askar Ahmed and anr.
Appellant AdvocateR. Subbaraj, Adv.
Respondent AdvocateIkram Mohamood and ;K. Ramachandran, Advs.
DispositionPetition allowed
Cases ReferredKaundar v. Ramasawmi Kaunder
Excerpt:
- - the second respondent is said to have assigned the said promissory note in favour of the first respondent on 23rd april 1973. the defendant filed a written statement contending that the promissory note was executed towards the sale consideration of a sale deed dated 11th february 1970 and since he could not get possession and he was injuncted by the court from taking possession, the consideration on the promissory note must be deemed to have failed and in any event the plaintiff is not a holder in due course. ramasawmi kaunder, considered the above ratio in the light of the later decisions and held that the said ratio is no longer good law......the purchase of the property as alleged by the defendant? 2. whether the agreement between the original payee and the defendant as pleaded by the defendant is true, valid and enforceable? 3. whether the assignment of the pronote in favour of the plaintiff is not valid? the defendant filed i. a. no. 879 of 1974 under order 1 rule 10 (2) c. p. code to im-plead the original payee assignor as a party defendant to the suit. this was resisted both by the plaintiff and the proposed party. the learned subordinate judge of vellore dismissed the application on the ground that he is neither a necessary nor a proper party. 2. on the facts of the case, i feel there is justification for adding the proposed party to this action. that the assignor-original payee of the promissory note is proper.....
Judgment:

Nainar Sundaram, J.

1. The defendant in O. S. No. 183 of 1973 on the file of the Court of the Subordinate Judge of Vellore is the petitioner. The first respondent filed asuit to recover the amount due on a promissory note dated 12-2-1970 executed by the defendant in favour of the second respondent viz., Abdulla Basha Sahib. The second respondent is said to have assigned the said promissory note in favour of the first respondent on 23rd April 1973. The defendant filed a written statement contending that the promissory note was executed towards the sale consideration of a sale deed dated 11th February 1970 and since he could not get possession and he was injuncted by the Court from taking possession, the consideration on the promissory note must be deemed to have failed and in any event the plaintiff is not a holder in due course. On the basis of the above findings issues were framed and issues 1 to 3 read as follows:--

1. Whether the suit pronote was executed for the purchase of the property as alleged by the defendant?

2. Whether the agreement between the original payee and the defendant as pleaded by the defendant is true, valid and enforceable?

3. Whether the assignment of the pronote in favour of the plaintiff is not valid? The defendant filed I. A. No. 879 of 1974 under Order 1 Rule 10 (2) C. P. Code to im-plead the original payee assignor as a party defendant to the suit. This was resisted both by the plaintiff and the proposed party. The learned Subordinate Judge of Vellore dismissed the application on the ground that he is neither a necessary nor a proper party.

2. On the facts of the case, I feel there is justification for adding the proposed party to this action. That the assignor-original payee of the promissory note is proper party to the action laid on a promissory note, has been recognised by this Court in a number of cases. This has been laid down in P. S. Pattabhiraman v. Ganapathy, : AIR1962Mad202 , in Rudrappa Chetti v. Narasimha Chetty 78 Mad LW 524 : 1965 2 MLJ 1060, inThambusami Reddiar v. Chidambaram Pillai : AIR1954Mad960 , in Kannammal v. Prema CHP 1190 of 1974 and in K. Madhava v. Santhi B. Mani CRP 1857 of 1975.

3. Sri K. Ramachandran, learned counsel for the proposed party relies on the ratio in Uthaman Chettiar v. Thiagaraja Pillai, 68 Mad LW 810 : AIR 1956 Mad 155. I find that the tacts are different and the said ratio cannot be relied upon to negative the claim of the defendant to add the original payee assignor of the promissory note to this action. Ramanujam J. in : AIR1971Mad328 , Rangaswami , Kaundar v. Ramasawmi Kaunder, considered the above ratio in the light of the later decisions and held that the said ratio is no longer good law. I find that the suit is of the year 1973 and I direct the court below to take up the matter and dispose of the same expeditiously and in any event before the end of August 1978.

4. Petition allowed.


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