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2011 DIGILAW 130 (KER)

Sahya Finance & Chits (P) Ltd. v. M. D. Simon

2011-01-31

M.N.KRISHNAN

body2011
JUDGMENT :- This revision petition is preferred against the judgment and decree of the District Judge, Palakkad in A.S.161/03. The said appeal in turn was filed against the judgment and decree of the Munsiff, Palakkad in O.S.902/01. It was a suit instituted by the plaintiff for realisation of the default amount due under a kuri transaction. It is the case of the plaintiff that the defendant had subscribed to a chitty and had bid it in auction and had executed a bond undertaking to pay balance in instalments. It is the case that the amount was paid up to the 35th instalment and thereafter he had committed default and therefore the suit is filed for the realisation of the amount. The defendant on the other hand denied about the jurisdiction of the Court and also contended that the suit is barred by limitation. It is also contended that the plaintiff has not credited the amount that was paid by the defendants and therefore prayed for dismissal of the suit. In the trial court issues were raised and the suit was dismissed by the trial court mainly on the ground of limitation. In appeal the said finding was confirmed by the learned District Judge. Now the crucial question that arises for determination is regarding the limitation. Admittedly the first defendant had joined in a kuri, bid the amount in auction and had executed the bond along with defendants 2 and 3 for the security of the future instalments. According to the plaintiff upto 35th instalment the amount was paid and therefore there is default committed with respect to the 35th instalments and therefore the suit is filed for the realisation of that amount. The trial court and the appellate court held that the suit is based on the bond executed and since three years have elapsed after the date of execution of the bond the case is barred by limitation. I am afraid that it is an erroneous approach. Now the bond or the document is executed undertaking to pay the balance amount due under a kuri transaction. Really the cause of action for institution of a suit arises only when a default is committed. Here no default is committed till the payment of 35th instalment. I am afraid that it is an erroneous approach. Now the bond or the document is executed undertaking to pay the balance amount due under a kuri transaction. Really the cause of action for institution of a suit arises only when a default is committed. Here no default is committed till the payment of 35th instalment. It is only from the 36th instalment the default is made and we can say that the cause of action for the plaintiff to institute a suit has arisen when the 36th instalment was defaulted. This Court has considered this point in the two decisions referred to below. In the decision referred to in 1977 KLT 482 Kochappan v. Official Liquidator this Court held that "Provision for payment of further subscriptions in lump on default of any one instalment in a kuri bond by a prized subscriber, whether precludes the foreman from collecting defaulted instalments". The Court held that "The bond, Ext. A1, only provides that if default is made in the payment of any one instalment, the defendants undertake to pay the balance in a lump. It does not preclude the foreman from receiving the defaulted instalments. As seen from the averments in the plaint the subscriber was not punctual but the foreman was receiving the subscriptions paid after the due date and crediting it for the earlier instalments without insisting on payment in full. The suit is filed after the natural termination of the kuri. The foreman did not at any time before the termination of the kuri demand payment of the whole. The right of the subscribers to pay the amounts in instalments continues until a demand is made. The default of each instalment creates separate cause of action and all cause of actions that arose within three years of the suit are not barred by limitation." In the decision reported in 1986 KLT 434 (Jess Ralph v. Modern Savings) this Court considered the question of limitation with respect to an agreement between the foreman and the subscriber. The Court held that by referring to Article 37 of the Limitation Act, "When the default is made unless where the payee or obligee waives the benefit of the provision and then when fresh default is made in respect of which there is no such waiver." 2. The Court held that by referring to Article 37 of the Limitation Act, "When the default is made unless where the payee or obligee waives the benefit of the provision and then when fresh default is made in respect of which there is no such waiver." 2. Now applying the dictum laid down in the two decisions referred to above, it has to be stated that there has been an execution of a bond undertaking to pay balance amount in 14 equal instalments. There was no default committed till the 35th instalment. The default is committed only on the 36th instalment. The bond is executed on 22.6.98. The stipulation is to pay the balance amount in 40 instalments. There was no default till the 35th instalment. That is upto to 5th month of 2001 namely May 2001. So the cause of action for realisation of the balance amount really arises only after May 2001 with respect to the balance instalments. Now all the 5 instalments which is due are claimed prior to the period of expiry of the limitation for the reason the suit is filed in the year 2001 itself. Therefore there is no bar of limitation for institution of the suit. So the finding of the trial court that the suit is barred by limitation is incorrect and therefore it is set aside. 3. Now the learned counsel for the respondent would contend before me that the Court has not considered the other contentions raised by him under the proper perspective. It is true that the pleadings is not very definite but there is a specific contention that all the paid amounts are not credited by the plaintiff. It is a matter which can be proved by producing documents. Therefore I am inclined to grant an opportunity to find out whether there is any balance amount due under the transaction. If so what is the amount. It is a matter which can be proved by producing documents. Therefore I am inclined to grant an opportunity to find out whether there is any balance amount due under the transaction. If so what is the amount. Therefore judgment and decree of both the Courts below are set aside and it is found that the suit is not barred by limitation and the case is remitted back to the trial court for consideration of the question regarding the correctness of the amount if any due from the defendants to the plaintiff and for that purpose the parties are permitted to adduce both documentary as well as oral evidence in support of their respective contentions and let the matter be disposed of in accordance with law. Parties are directed to appear before the trial court on 1.3.2011. Being a money suit of a transaction of 2001, if possible the matter be disposed of before the Court closes for summer holidays in 2011.