IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 8TH JULY 2010 / 17TH ASHADHA 1932 AS.No. 137 of 1996() ----------------------------- OS.231/1909 of PRINCIPAL SUB COURT,ATTINGAL .................... APPELLANT(S): DEFENDANTS --------------------------------------------- 1. NANU SASANKAN, CHANDRIKA VILASATHU VEEDU, REGHUNATHAPURAM, CHERUKUNNAM DESOM, VARKALA VILLAGE. 2. SREEDHARAN SYAMALA, CHERUKUVILA VEEDU, SREENIVASAPURAM, CHERUKUNNAM DESOM, VARKALA VILLAGE. BY ADV. SRI .P.R.VENKETESH RESPONDENT(S): PLAINTIFF ------------------------------------------- RAMAN PILLAI MOHANAN NAIR, RESIDING AT VADAKKEVILA VEEDU, PUNNAMOODU, KURAKANNI DESOM, VARKALA VILLAGE (REP.BY HIS POWER OF ATTORNEY SUKUMARA PILLAI USHAKUMARI, VILAYIL VEEDU, PUTHEN CHANDA, VETTOOR DESOM AND DO. VILLAGE. ADV. SRI.G.S.RAGHUNATH, SRI.M.RAMASWAMY THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 08/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON CMP. 1276/1996 IN AS. NO.137/1996 DISMISSED 08/07/2010 SD/- M.N.KRISHNAN, JUDGE TRUE COPY P.A. TO JUDGE tss M.N. KRISHNAN, J. = = = = = = = = = = = = = = = A.S. NO. 137 OF 1996 = = = = = = = = = = = = = = = Dated this the 8th day of July, 2010. J U D G M E N T This appeal is preferred against the judgment and decree passed by the Principal Subordinate Judge, Attingal in O.S.231/93. The suit is one for realisation of the amount on a claim on the basis of a warranty clause. The brief facts are as follows. The defendants had assigned the property described in Ext.B2 for a consideration of Rs.25,000/-. The defendants had obtained the property under Ext.B1. There is a clause in Ext.B2 whereby the defendants had undertaken to make loss of anything that is occasioned to the plaintiff on account of any loss and as a security had furnished B schedule therein making it a charge for any amount due. The facts would reveal that the property A.S. 137 OF 1996 -:2:- transferred in favour of the plaintiff was a land obtained under the Kerala Land Reforms (Ceiling) Rules 1970. As per the said rule especially R.29, lands assigned u/s 96 shall be heritable but shall not, subject to the provisions of sub-rules (2) to (5), be alienable for a period of 12 years from the date of assignment or for the period during which the charge created under sub-section (3) of S.97 subsists, whichever is later.” Therefore there is an embargo under the rules regarding the transfer of property. Defendants with closed eyes purchased the property and again transfers it to the plaintiff and it is undertaken in Ext.B2 that they are furnishing security of B schedule property for any type of loss occasioned to the plaintiff. Therefore there is a warranty clause which enables the plaintiff to come before Court. A.S. 137 OF 1996 -:3:- 2. Now the learned counsel for the appellant would submit before me that being a buyer, the Transfer of Property Act imposes duty on him also to ascertain regarding the correctness of the title of the seller. Most probably there would have been some discussion otherwise there was no necessity at all for incorporating a warranty clause undertaking to fulfill or undertaking to make good of any loss sustained by the plaintiff. Therefore it is an enforceable clause. 3. Now the learned counsel for the appellant strongly contends before me that it is Article 55 of the Indian Limitation Act that is applicable and not Article 62 of the Indian Limitation Act as found by the court below. It is true that when there is a breach of contract, for claiming compensation a suit has to be filed within three years when the contract is broken A.S. 137 OF 1996 -:4:- or the breach in respect of which the suit is instituted occurs. But what will be the position when there is an undertaking to the effect that one can enforce the contract to realise money in the form of damages by selling the property given as security in B schedule. A reading of Ext.B2 makes it crystal clear that the parties have entered into a contract whereby the defendants have undertaken to compensate the plaintiff in the event of any loss by selling the property given as security by enforcing the clause in the document. So it is to enforce that clause on the basis of a charge the suit is instituted by the plaintiff. When it is so I hold that the Article that is applicable would be Article 62 of the Indian Limitation Act. 4. Learned counsel had relied upon the decision of the Madras High Court reported in Bhagyathammal v. Dhanabagyathammal (AIR 1981 A.S. 137 OF 1996 -:5:- Madras 303). It was a case where the Court held that when the vendors title is absent at the inception the cause of action will arise from that date. The Court was not considering a case where there was a security given for the enforcement for payment as is done in this case. Further under the provisions of S.55(6) of the Transfer of Property Act also there is an indication of a charge created as a statutory charge when there are breaches. So on an analysis of these materials and the relevant clause I have no hesitation to hold that it is Article 62 of the Indian Limitation Act that will be applicable and since the suit is filed within the statutory period of 12 years, the suit is perfectly maintainable. 5. It is also to be stated that by virtue of a proceedings initiated by the Government in accordance with rules the unauthorized A.S. 137 OF 1996 -:6:- alienation against rules had been put an end to and the property has been recovered by the Government. So the plaintiff has lost the property and he has enforced the security clause and therefore that also has to be answered in his favour. What is ordered to be paid back is the amount which the defendants had received as sale consideration from the plaintiff. So the judgment and decree of the trial Court do not warrant interference. The appeal lacks merits and therefore it is dismissed but under the circumstances without any order as to costs. M.N. KRISHNAN, JUDGE. ul/- A.S. 137 OF 1996 -:7:- M.N. KRISHNAN, J. = = = = = = = = = = A.S. No. 137 OF 1996 = = = = = = = = = = = J U D G M E N T 8th July, 2010.