JUDGMENT : Harun-Ul-Rashid, J. The defendants are the appellants. The appeal is directed against the judgment and decree dated 31.5.2005 in O.S.No.341/1990 on the file of the 1st Additional Sub Court, Thrissur. Suit was filed for realization of money due under chitty transaction. The court below decreed the suit with costs. It is declared that the plaintiff is entitled to realise Rs.53,280/- with interest for the principal sum of Rs.36,000/- at the rate of 12% interest from the date of suit till the date of decree and thereafter at the rate of 6% till realisation of the amount with cost from the defendants and their assets. The parties hereinafter are referred to as the plaintiff and defendants as arrayed in the suit. 2. The facts of the case are not in dispute. The plaintiff is a Kuri company. The Kuri was started on 8.10.1982 in which the 1st defendant subscribed the 44th ticket of that Kuri. The Kuri amount is payable by half yearly instalments of Rs.2,000/- in April and October. The Kuri was prized in favour of the 1st defendant. Defendants 1 to 5 executed 'kuri karar' on 4.11.1982 agreeing to pay the future subscriptions of 24 instalments from 8.4.1983 regularly and in default of any one of the instalment, agreed to pay the consolidated amount of future subscriptions with 12% interest. The defendants defaulted instalments from 8.10.1984 to 8.10.1985. The plaintiff filed O.S.No.2600/1985 for realisation of the defaulted instalments. The said suit was decreed on 20.3.1989. The present suit was filed for realisation of the defaulted instalments from 8.4.1986 and for future instalments. 3. The defendants filed written statement contending that the suit has been filed three years after the alleged cause of action and therefore, the suit is barred by limitation. It is stated that there is no specific waiver as per Article 37 of the Limitation Act and hence the entire plaint claim is barred by limitation. 3. The defendants filed written statement contending that the suit has been filed three years after the alleged cause of action and therefore, the suit is barred by limitation. It is stated that there is no specific waiver as per Article 37 of the Limitation Act and hence the entire plaint claim is barred by limitation. It is stated that as per the 'Kuri Karar' the plaintiff is entitled to realise the entire Kuri amount with interest, that the plaintiff had sent a lawyer notice on 28.5.1985, that on 8.11.1985, the plaintiff filed O.S. No. 2600/1985, that the suit was decreed ordering realisation of defaulted instalments from October 1984 to October, 1985, that since the plaintiff failed to claim the defaulted instalments after October, 1985, within the period of limitation, he had relinquished his right to realise the future amount and therefore, the suit is not maintainable. 4. The plaintiff was examined as PW1 and Exts.A1 to A5 were marked. Defendants examined DW1. 5. The trial court framed issues as to whether the suit is barred by limitation, whether the suit is maintainable and whether the plaintiff is entitled to realise the amount claimed in the plaint. Ext.A1 is the Kuri karar executed by the defendants on 4.11.1982. The Kuri karar contains provision for realisation of the consolidated amount of future instalments with 12% interest, if default is made. As per the Kuri karar, the defendants agreed to pay the future subscription for 24 instalments from 8.4.1983 and in default of any one of the instalment, agreed to pay the consolidated amount. Defendants defaulted the instalments from 8.10.1984 to 8.10.1985. The plaintiff filed O.S.No.2600/1985. That suit was decreed. Ext.A2 dated 20.3.1989 is the certified copy of the decree in O.S.No.2600/1985. Ext.A3 is the written statement filed in the said suit. Ext.A5 is the certified copy of the judgment in O.S.No.2600/1985. In the said suit, plaintiff filed I.A.No.3950/1985 seeking leave of the court to file a fresh suit for the defaulted instalments made after 8.10.1985. The said I.A was allowed. Ext.A4 is the certified copy of the order in the I.A. The order of the court is endorsed on Ext.A5. The present suit is filed on the basis of the order in Ext.A4 for the consolidated amount for 18 instalments since 8.4.1986. The present suit was filed on 10.4.1999. The said I.A was allowed. Ext.A4 is the certified copy of the order in the I.A. The order of the court is endorsed on Ext.A5. The present suit is filed on the basis of the order in Ext.A4 for the consolidated amount for 18 instalments since 8.4.1986. The present suit was filed on 10.4.1999. It is contended by the defendants that as there is no specific plea of waiver for the defaulted instalments from 8.4.1986 to 10.4.1987, the period of limitation shall be computed from 8.4.1986 onwards. It is pointed out that since the defaulted payment of kuri amount was from 8.4.1986, as there is no specific plea of waiver as per Article 37 of the Limitation Act, the suit filed beyond three years after the alleged cause of action is barred by limitation. 6. In the earlier suit, the defendants filed written statement admitting the plaint claim and Ext.A2 decree was passed on the basis of the admission. In the said suit, the plaintiff opted to claim the amount due for three instalments from 8.10.1984. As per the order in I.A.No.3950/1985, the plaintiff reserved his right to claim the defaulted instalments since 8.4.1986. Placing reliance on Exts.A2, A4 and A5, the trial court found that the cause of action for the present suit is a continuation of O.S.No.2600/1985, so the question of waiver of instalment due from 8.4.1986 to 1.4.1987 does not arise in the suit, that as per the order in Ext.A4, the plaintiff has reserved his right to file a fresh suit for the defaulted instalments since 8.4.1986 and hence the suit is not barred by limitation. On facts, the court below found that each defaulted instalment would give raise to a new cause of action, that it is the option of the foreman to decide whether the suit to be filed for the consolidated amount or for the defaulted amount till the date of suit, that he had opted to file O.S.No.2600/1985 for the three defaulted instalments and obtained permission of the court to file a fresh suit for the subsequent defaulted instalments and as such each and every defaulted instalment would give raise to a new cause of action, the question of relinquishment does not arise, so the suit is maintainable. 7. The learned senior counsel, Sri. 7. The learned senior counsel, Sri. M.C. Sen submits that the earlier suit was filed for the instalments due up to 8.10.1985, that the present suit was filed for the defaulted amount from 8.4.1986 and since the suit was filed on 1990, the suit should have been dismissed since it was barred by limitation. The learned senior counsel also submits that the court below wrongly assumed that because of the order in I.A.No.3950/1985 in the earlier suit, a fresh cause of action will be available. According to him, the order passed in the said suit does not save the bar of limitation for the second suit and therefore, the view taken by the court below that the suit is not barred by limitation is wrong and against law. The learned senior counsel also pointed out that there is no pleading in the plaint for waiving the default clause for claiming exemption from the bar of limitation. It is also pointed out that as per Article 37 of the Limitation Act, when default is made the whole amount shall be due and the period of limitation is three years from the date of 1st instalment due and therefore, the present suit is barred by limitation. 8. The learned senior counsel cited the decisions reported in Krishnan Madhavan v. Narayanan Jayadevan ( 1974 KLT 534 ), P.J. Kuriakose v. K.C Cherian ( 1984 KLT 744 ), Kochappan v. Official Liquidator ( 1977 KLT 482 ), Sukumaran v. Sankaran ( 1977 KLT 833 ) and Jess Ralph v. Modern Savings ( 1986 KLT 434 ) in support of his contentions. In the decision reported in Krishnan Madhavan's case (supra), this Court held that the limitation starts from the date of cause of action arose in terms of Article 37 when on 16.8.1964 the 23rd instalment was kept in arrears and that the limitation starts from that date unless the plaintiff had waived the benefit of the provision which enabled him to claim the entire amount in a lump, and then, when fresh default is made in respect of which there is no waiver and that waiver being an abandonment of a right, it must be intentional, the intention being either express, implied or inferable from the conduct. This Court held that Article 37 applied to the facts of the case and in that view when the cause of action had arisen on 16.8.1964 when the default had commenced and in the absence of proof regarding any waiver, the suit should have been filed within three years from that date, the suit is barred by limitation. In the decision reported in Sukumaran's case (supra), suit was instituted on 8.10.1974 and the plaint claim was for all the instalments that had accrued due from 10.6.1971 onwards. The court held that since the suit has been instituted only after the expiry of the three years from 10.6.1971, the plaintiff is not entitled to recover the amount payable in respect of the instalments fell due beyond three years, the plaintiff can get a decree only for the instalments due within three years of filing the suit. This Court held that in order that a case should be governed by Article 37 of the Limitation Act the cause of action for recovery of the entire balance amount should accrue to the creditor on the date of default of payment of the instalment. Such is not the position in cases governed by Section 32(1) of the Travancore Chitties Act where the cause of action will accrue to the foreman only when a demand in writing is made on the subscriber for consolidated payment of all the future subscriptions. In the decision reported in P.J. Kuriakose's case (supra), a Division Bench of this Court considered a similar provision in the bond that the foreman is entitled to claim all the future subscriptions, when the prized subscriber commits default of payment of any one of the instalment. This Court held that consolidated payments become due only on the making of a written demand and hence the starting point of limitation is only when the written demand is made and that the plaintiff can recover in the suit only the amount of such of the instalments as had fallen due within three years prior to the date of institution of the suit. In the decision reported in Kochappan's case (supra), it is considered that there is a bond for payment of future subscription in lump on default of any one of the instalment by a prized subscriber. Suit was filed after the termination of the Kuri. In the decision reported in Kochappan's case (supra), it is considered that there is a bond for payment of future subscription in lump on default of any one of the instalment by a prized subscriber. Suit was filed after the termination of the Kuri. The foreman in that case did not, at any time before the termination of the kuri, demand payment of the whole. The Court held that the right of the subscribers to pay amounts in instalments continues until a demand is made and that 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 Jess Ralph's case (supra) it was held that the chitty bond does not provide that the entire amount falls due immediately the default is committed, which is a suit by a foreman for the defaulted amount by a subscriber. There was an agreement which provides option to pay the entire amount of default. The foreman in that case did not exercise his option. The court held that if so, the entire amount did not fall due immediately when the default was committed, that therefore the clause in a bond or a note expressly or by necessary implication provides for an option to be exercised, waiver, for the purpose of Article 37 is implicit in the claim for the entire amount when the option is not exercised and thus, all amounts which fell due within three years of the suit can be claimed either under Article 113, the residuary article, or even under Article 36 treating it as an ordinary instalment bond or note. 9. The present suit is filed for realization of the defaulted instalments from 8.4.1986 till the termination of the kuri. The suit was for realization of the defaulted instalments as well as for future instalments. Suit was filed for consolidated amount of 18 instalments since 8.4.1986. The suit was filed on 10.4.1990. The suit was filed for realization of the defaulted instalments including the instalments due beyond three years. The suit was for realization of the defaulted instalments as well as for future instalments. Suit was filed for consolidated amount of 18 instalments since 8.4.1986. The suit was filed on 10.4.1990. The suit was filed for realization of the defaulted instalments including the instalments due beyond three years. The trial court held that the suit is not barred by limitation for the reason that in the earlier suit, the plaintiff opted to limit his claim for three instalments from 8.10.1984 and as per the order in Ext.A4, he had reserved his right to file a fresh suit for the defaulted amount subsequent to 8.4.1986, that the earlier suit was decreed on 20.3.1989, the present suit was filed on 10.4.1990 and therefore, the suit is not barred by limitation. 10. It is stipulated in Ext.A1 kuri bond that the foreman is entitled to claim all the future subscription when the prized subscriber commits default of payment of any of the instalment. The terms of Ext.A1 enable the foreman to make a demand in writing and in the event of making a demand in writing gives him the right to sue for consolidated payment as held by this Court in P.J. Kuriakose's case (supra). It is clear from the statutory provisions that the foreman is entitled to claim consolidated payment of all the future subscriptions on making of a demand in writing by the foreman and that it is significant to note that the words used in the provision are 'entitled to claim', denotes that the right enabling the foreman to recover the entire future subscriptions is dependant on the demand in writing for the future subscriptions. This Court held that "the consolidated payment becomes due only on the making of a written demand and hence the starting point of limitation is only when the written demand is made". 11. The learned counsel for the respondent/plaintiff is well founded in the contention advanced by him that even if it is Article 113 and not Article 37 of the Act that governs the case, the plaintiff can recover in the suit the amount of such of the instalments as had fallen due within three years prior to the date of institution of the suit. 12. 12. Following the decisions of the Division Bench of this Court in P.J. Kuriakose v. K.C. Cherian ( 1984 KLT 744 ), Kochappan v. Official Liquidator ( 1977 KLT 482 ), Sukumaran v. Sankaran ( 1977 KLT 833 ) and Jess Ralph v. Modern Savings ( 1986 KLT 434 ), this Court is of the view that the plaintiff is entitled to the decree for instalments which fell due within three years of the date of suit and therefore, the decree so far it relates to the amount due under the instalments prior to the period of three years and future instalments, is unsustainable in law and therefore, vacated. Hence, in substitution of the decree passed by the court below, the plaintiff is granted a decree of Rs.12,000/- with interest at the rate of 12% from the date of suit till the date of decree and thereafter at the rate of 6% interest till the realization of the amount with proportionate cost from the defendants and their assets. In the result, the appeal is allowed in part. The decree and judgment passed by the trial court is modified to the extent as stated above.