Subramonia Iyer v. Lakshmi Ammal — 1964 DIGILAW 267 (KER)

JUDGMENT T.C. Raghvan, J. 1. These appeals have been heard together as some common questions are involved. A.S.No. 45 of 1960 arises out of O. S. No.112 of 1953 on the file of the District Court of Trivandrum. The suit was on a promissory note, Ex. H., executed by a person named R. A. Krishnan, since deceased, and the 10th defendant to the Alathur Bank, whose managing proprietor is P.R. Subramonia Iyer, the plaintiff- appellant. Defendants 2 to 6 are the brothers of R. A. Krishnan and the 1st defendant his mother. Defendants 7 to 9 are his wife and children and the 10th defendant, as already stated, the co-obligant. The lower court dismissed the suit on the ground that the suit was barred by limitation and that the suit as framed was not maintainable. The plaintiff appeals. 2. The other two appeals arise out of two suits tried and disposed of together by the Court of the Subordinate Judge, Trivandrum. A. S. No. 101 of 1961 arises out of a suit on two promissory notes, Exx. AN and AO. Deceased R. A. Krishnan executed the promissory notes along with the 10th defendant to the plaintiff-appellant,. the Kerala Commercial Bank, Ltd. In this suit also the 1st defendant is the mother of R.A. Krishnan, defendants 2 to 6 his brothers and defendants 7 to 9 his wife and children. The lower court decreed the suit with costs against the assets, if any, of R. A. Krishnan in the hands of defendants 1 to 9 and against the 10th defendant personally. The lower court refused to grant relief against defendants 1 to 9 personally and their separate or joint family assets, against the assets of a firm by name A. V. Viraraghava Iyer and Co. and also against the assets left by late A. V. Viraraghava Iyer, the maternal grand-father of R. A. Krishnan. Here also the plaintiff- bank appeals. 3. The last of these appeals arises out of a suit on three post-dated cheques, Exx. C, D and H, drawn by R. A. Krishnan in favour of the plaintiff-appellant. Two of the cheques were issued on 23rd May 1950 with a direction to present them for payment on 23rd December of the year. The other cheque was issued on 24th August 1950 with a similar direction. C, D and H, drawn by R. A. Krishnan in favour of the plaintiff-appellant. Two of the cheques were issued on 23rd May 1950 with a direction to present them for payment on 23rd December of the year. The other cheque was issued on 24th August 1950 with a similar direction. Before the date for presentation R. A. Krishnan died in an aero plane crash and therefore the Indian Bank, Ltd., on whom the cheques were drawn, refused payment. The suit was consequently filed and the lower court granted a decree similar in terms to the decree which is the subject-matter of A. S. No. 101 of 1961. The only additional fact to be noted in this case is that R. A. Krishnan's father was also impleaded as the 10th defendant in this suit and he died pending suit. The plaintiff appeals in this case as well. 4. The first question to be considered in A. S. No. 45 of 1960 is whether the lower court is right in its conclusion that the suit is barred by limitation. The suit was instituted in the lower court on 5th June 1953, the day on which that court reopened after the midsummer recess. The suit promissory note was executed on 28th April 1950 at Alathur in the Palghat District. The period of limitation expired on 28th April 1953, on which date the lower court remained closed. The learned District Judge observes that the question whether the 'plaintiff had a subsisting right on 5th June 1953 would depend upon the fact whether the court at Alathur which had also jurisdiction to entertain the suit, was closed or not on 28th April 1953; and since no evidence was let in by the plaintiff to prove that that court was closed on that date, the District Judge holds, the suit was barred by limitation. We are not able to appreciate this reasoning. To us it seems that it is but elementary that if the plaintiff has the right to bring his suit in one of two courts and he chooses one of them which remained closed on the last day of limitation, his suit. filed in that court on its reopening day cannot be said to be barred by limitation for the reason that the other court in which also he could have instituted the suit was working on the last day of limitation. filed in that court on its reopening day cannot be said to be barred by limitation for the reason that the other court in which also he could have instituted the suit was working on the last day of limitation. If the plaintiff had the option to choose his forum under section 20 of the Code of Civil Procedure, which he undoubtedly had, and if he also chose it and if that court remained closed on the last day of limitation, it goes without saying that the suit filed on the reopening day of that court is within time under section 4 of the Limitation Act of 1908. If any authority is necessary for this obvious proposition, the decisions in Veerappa Channappa Gondi v. Iratappa Malagi A.I.R. 1938 Bom, 209 and Boda Subba Rao v. Kandregula Narsiah A.I.R. 1940 Mad. 495 may be referred to. 5. Then we come to the question whether the suit as framed is maintainable. Here also we are constrained to observe that the learned District Judge is palpably wrong in his conclusion that the suit is not maintainable. "The suit promissory note was to the Alathur Bank. The suit was brought by P. R. Subramonia Iyer as managing proprietor of the said Bank. Subramonia Iyer is admittedly not the manager of the joint family to which he belongs, his elder brother, P. R. Swamy Iyer, being the manager. Subramonia Iyer as P.W. 1 has deposed that the Bank is a joint family business and that he is the person competent to sue and be sued on behalf of the joint family regarding this business. The learned District Judge says that the suit is not on behalf of the Bank; that if the Bank is a partnership in which Subramonia Iyer is a partner, the suit is hit by section 69 of the Partnership Act; and that the plaintiff has not proved that he has authority to sue on behalf of the joint family. We are afraid that this reasoning of the District Judge is grievously erroneous. Exx. AC and AD have been marked by the lower court, which show without any shadow of doubt that Subramonia Iyer had authority to sue and be sued as managing proprietor of the Alathur Bank on behalf of the joint family. Ex. We are afraid that this reasoning of the District Judge is grievously erroneous. Exx. AC and AD have been marked by the lower court, which show without any shadow of doubt that Subramonia Iyer had authority to sue and be sued as managing proprietor of the Alathur Bank on behalf of the joint family. Ex. AC is an agreement executed in 1928 by Ananthanarayana Iyer and his two sons, P. R. Swamy Iyer and P. R. Subramonia Iyer. This document recites that the Bank was started as a joint family business in December 1926 and that Subramonia Iyer was functioning as its managing proprietor. The document then provides that Subramonia Iyer has authority to sue and be sued on behalf of the Bank. Ex. AD is of the year 1941 and that was executed by Swamy Iyer and Subramonia Iyer after the death of their father. The terms of Ex. AD are similar to those of Ex. AC. It is therefore abundantly clear that the Alathur Bank is a joint family business and that Subramonia Iyer has authority to bring the suit on behalf of the joint family as the managing proprietor of the Bank. 6. Mr. T. N. Subramonia Iyer, the learned counsel of the 10th defendant, argues a little vociferously and with an apparent air of righteous indignation that in view of sections 8, 32 and 78 of the Negotiable Instruments Act no decree can be given in favour of the plaintiff. His contention is that the suit promissory note does not disclose P. R. Subramonia Iyer as the holder and therefore he is not entitled to a decree. The vigour of this contention, in view of its hollowness, has failed to stir even mild ripples of conviction in our minds. For one thing, it is erroneous to treat the question as purely a question of liability on the promissory note, as observed by the Privy Council in Karmali Abdulla Allarakia v. Vora Karimji Jiwanji I.L.R. 39 Bom. 261 in a case arising out of a partnership. The said observation of the Privy Council is apt in the present case as well, which is one dealing with a joint family business of money-lending. Secondly, the Alathur Bank is the holder of the promissory note and P. R. Subramonia Iyer is authorised to sue under Ex. AD on behalf of the Bank. The said observation of the Privy Council is apt in the present case as well, which is one dealing with a joint family business of money-lending. Secondly, the Alathur Bank is the holder of the promissory note and P. R. Subramonia Iyer is authorised to sue under Ex. AD on behalf of the Bank. To a question put by us to the counsel that if P. R. Swamy Iyer, the manager of the joint family, brought the suit would the 10th defendant still have raised this objection, the counsel has replied that he could not have raised it. If so, we fail to see any substance in the contention that Subramonia Iyer could not have brought the suit. It is patent that under Ex. AD Subramonia Iyer had the right to represent the family in relation to the Bank. [* * * * * ] In the result, we allow A.S. No. 45 of 1960 and grant a joint and several decree for the plaint amount and costs in both the courts with interest at six per cent on the plaint amount from date of plaint against deceased R. A. Krishnan's properties in the hands of defendants 1 to 9 and against the 10th defendant, the co-obligant, personally. We dismiss the other appeals with costs of the contesting respondents, one set in each case.