Pokkinath Choyi vs R.Gopan
2022 Latest Caselaw 11587 Ker

                IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                   PRESENT
                THE HONOURABLE MR. JUSTICE SATHISH NINAN
     TUESDAY, THE 20TH DAY OF DECEMBER 2022 / 29TH AGRAHAYANA, 1944
                           RSA NO. 436 OF 2006
   AGAINST THE JUDGMENT IN AS 273/2004 OF I ADDITIONAL DISTRICT COURT,
                                 KOZHIKODE
            OS 273/2002 OF I ADDITIONAL SUB COURT, KOZHIKODE
                                    -----
APPELLANT/APPELLANT IN LAC/DEFENDANT:

           POKKINATH CHOYI, AGED 60 YEARS,
           S/O.CHANDUKUTTY, RESIDING AT NEDUMKATTIL HOUSE, KALLARI,
           POOVATTU PARAMBU P.O. KOZHIKODE.

           BY ADV SRI.AVM.SALAHUDIN



RESPONDENT/RESPONDENT IN LAC/PLAINTIFF:

           R.GOPAN, AGED 38 YEARS,
           S/O.R.RAMACHANDRAN, RESIDING AT KUZHIVILAKATH VEEDU,
           ARALUMMOODU P.O.,NEYYATTINKARA.

           BY ADVS.
           SRI.S.JAMES VINCENT
           SRI.M.SREEKUMAR




     THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 20.12.2022,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
                      SATHISH NINAN, J.
            = = = = = = = = = = = = = = = = = =
                   R.S.A. No.436 of 2006
            = = = = = = = = = = = = = = = = = =
         Dated this the 20th day of December, 2022

                          J U D G M E N T

The suit for money based on a promissory note, was

decreed concurrently by the Courts. The defendant is in

Second Appeal.

2. According to the plaintiff, on 01.08.1999, the

defendant borrowed an amount of ` 1,44,000/- from the

plaintiff's father and issued Ext.A1 promissory note.

The father assigned the debt under Ext.A1 in favour of

the plaintiff. Since the amount under Ext.A1 has not

been paid, the suit is filed.

3. The borrowal of amounts under Ext.A1 and

issuance of Ext.A1 was admitted by the defendant. He

raised a plea of discharge. Ext.B1 receipt dated

19.06.2002 was produced in evidence of plea of

discharge. He further disputed the plea of assignment of

Ext.A1 in favour of the plaintiff.

R.S.A. No.436 of 2006

4. The Courts held against the plea of discharge,

found that the debt under Ext.A1 has been assigned in

favour of the plaintiff and accordingly decreed the

suit.

5. Heard learned counsel on either side on the

following substantial question of law:-

"Are the findings of the Courts regarding assignment

of rights under Ext.A1 in favour of the plaintiff, and

negativing the plea of discharge of the defendant, supported

by the evidence on record ?

6. Sri.A.V.M.Salahuddeen, learned counsel for the

appellant vehemently argued that, though the suit is

based on an assignment of the rights under Ext.A1, the

Courts have not proceeded to consider the suit in that

manner. There is no evidence to support the plea of

assignment, it is contended. He also argued that the

plea of discharge ought to have been accepted by the

Courts.

R.S.A. No.436 of 2006

7. Ext.A1 contains an endorsement by the father of

the plaintiff, assigning the debt thereunder to the

plaintiff. The assignment is under the signature of the

plaintiff's father. So also it contains his thumb

impression. Intimating the defendant regarding the

assignment of debt under Ext.A1, the plaintiff's father

had issued Ext.A5 letter to the defendant. Ext.A4 is the

certificate of posting in respect of the same. The

evidence on record is sufficient to find the assignment

of the rights under Ext.A1 by the plaintiff's father in

favour of the plaintiff. The finding of the first

appellate court that there was due assignment of the

rights under Ext.A1 in favour of the plaintiff, is

supported by the materials.

8. Coming to the plea of discharge, the defendant

relies on Ext.B1, the receipt dated 19.06.2002 claimed

to have been executed by the plaintiff's father on

receipt of the debt. The genuineness of Ext.B1 is

disputed by the plaintiff.

R.S.A. No.436 of 2006

9. If the liability under Ext.A1 was discharged by

the defendant, there is no reason why he did not get

back Ext.A1 from the plaintiff's father. That apart,

Ext.A1 does not contain any endorsement of discharge.

There is no case for the defendant that the plaintiff's

father wrote Ext.B1. There is no evidence as to who

wrote the contents of Ext.B1. Both the Courts on a mere

perusal of the signature seen in Ext.B1, along with the

signatures in Exts.A1 and A5, found that the signature

in Ext.B1 is different from those seen in Exts.A1 and

A5. Ext.A5 is the letter of assignment of the rights

under Ext.A1. It is dated 24.07.2002. Ext.B1 is claimed

to have been issued on 19.06.2002. If the debt under

Ext.A1 was already satisfied, the letter of assignment,

Ext.A5, would not have been issued in favour of the

plaintiff. Both the courts have analysed the evidence

on record extensively and have found that Ext.B1 receipt

of discharge is not genuine, and the plea of discharge

was repelled. It is a finding of fact which is supported R.S.A. No.436 of 2006

by the evidence.

10. The findings regarding assignment of the debt

and the plea of discharge are based on materials.

Substantial question of law is answered accordingly.

There is no merit in the appeal and the same is

dismissed.

Sd/-

SATHISH NINAN JUDGE

kns/-

//True Copy// P.S. to Judge