IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS THURSDAY, THE 17TH DECEMBER 2009 / 26TH AGRAHAYANA 1931 AS.No. 546 of 1998() ----------------------------- (O.S.No.1445/1992 of Ist Additional Sub Court, Thrissur) APPELLANT(S): DEFENDANTS: ------------------------------------------- 1. SANKARANARAYANAN (DIED), S/O.PADINJARETHALAKKAL NANU EZHUTHASSAN, WEST FORT, ARANATTUKARA VILLAGE, THRISSUR TALUK. 2. P.S.RAJAGOPAL, S/O.PADINJARETHALAKKAL NANU EZHUTHASSAN, WEST FORT, ARANATTUKARA VILLAGE, THRISSUR TALUK. 3. P.S.JAYAGOPAL, S/O.PADINJARETHALAKKAL NANU EZHUTHASSAN, WEST FORT, ARANATTUKARA VILLAGE, THRISSUR TALUK. 4. RUGMINI, W/O.DECEASED SANKARANARAYANAN, WEST FORT, ARANATTUKARA VILLAGE, THRISSUR TALUK. 5. VENUGOPAL, S/O.DECEASED SANKARANARAYANAN, WEST FORT, ARANATTUKARA VILLAGE, THRISSUR TALUK. 6. NANDAGOPAL, S/O.DECEASED SANKARANARAYANAN, WEST FORT, ARANATTUKARA VILLAGE, THRISSUR TALUK. BY ADV. SRI.SEBASTIAN DAVIS SRI.P.V.JYOTHI PRASAD. RESPONDENT(S): PLAINTIFF: ----------------------------------------- M/S.CREDIT INDIA, ERINJERI ANGADI, THRISSUR, THRISSUR VILLAGE AND TALUK. BY ADV. SRI.S.V.BALAKRISHNA IYER, SENIOR ADVOCATE THIS APPEAL SUIT HAVING BEEN FINALLY HEARD ON 17/12/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.M.JOSEPH & M.L.JOSEPH FRANCIS, JJ. ------------------------------------------------------ A.S.No.546 of 1998 ---------------------------------------------- Dated, this the 17th day of December, 2009 J U D G M E N T K.M.Joseph, J. Appellants are the defendants in the suit. The suit is one for money based on Ext.A1 promissory note executed by original defendants 1 to 3 on 18.11.1983. The suit has been decreed for a sum of Rs.1,59,843/- with interest at the rate of 12% per annum on Rs.1,23,000/- from the date of the suit till realisation and also with the cost of the suit. We heard Sri.Sebastian Davis, learned counsel for the appellants and Sri.S.V.Balakrishna Iyer learned counsel for the respondent. 2. The only point which is raised before us by the learned counsel for the appellants is that the plaint claim ought to have been rejected as being barred by limitation. The case of the respondent/plaintiff was that there there is a renewal and acknowledgment on the basis that Rs.1,000/- was paid on 18.11.1986 by the defendants. The case of the A.S.No.546 of 1998 -2- respondent/plaintiff was that a sum of Rs.1,25,000/- was borrowed from the plaintiff on 18.11.1983 by defendants 1 to 3. They executed Ext.A1 promissory note. It is stated that the defendants had paid Rs.53,250/- towards interest due. It is stated that an amount of Rs.1,250/- was paid on 18.11.1989. It is stated that Rs.50,000/- was paid on 5.4.1984, Rs.1,000/- was paid by endorsement on the promissory note on 18.11.1986 and Rs.1,000/- was paid on 18.11.1989. Plaintiff's case is that since defendants had endorsed the payments on 18.11.1986 and 18.11.1989 the claim is not barred by limitation. Since the original Ist defendant passed away, defendants 2 to 6 filed written statement inter alia contending that the averment in the plaint that a sum of Rs.1,000/- each was paid on 18.11.1986 and on 18.11.1989 as per the endorsement on the back side of the promissory note is false. They contended that the facts were artificially created for the purpose of the suit and the claim is barred by limitation. 3. Sri.Sebastian Davis, learned counsel for the appellants would point out that Ext.A1 promissory note would A.S.No.546 of 1998 -3- show that the alleged endorsement on 18.11.1986 was made only by defendants 1 and 2. It would appear that the Ist defendant and the 2nd defendant had signed and made endorsement regarding payment of Rs.1,000/-. Subsequently, on 18.11.1989 there is an endorsement regarding payment of Rs.1,000/- and it is signed by the 3rd defendant. Learned counsel for the appellants would point out that a similar question which arose between the same parties fell for consideration of a Division Bench of this Court in A.S.No.98/1997. He would point out that after considering the matter elaborately the Division Bench has upheld the similar contention of the appellant and found that the suit is barred by limitation. He would contend that even proceeding on the basis of the endorsement made on 18.11.1986, the endorsement is made only by defendants 1 and 2. There is no endorsement made on Ext.A1 subsequently within the period of limitation by defendants 1 and 2 in the year 1989. The endorsement on 18.11.1989 is made only by the 3rd defendant. Taking the endorsement and signature of the 3rd defendant on 18.11.1989, he had made it at the time when A.S.No.546 of 1998 -4- the claim is already barred against him and in such circumstances his endorsement would not save the running of limitation. There is no case of any authorization. In such circumstances, we feel that there is no case made out for taking a different view from that taken by the Division Bench in A.S.No.98/1997. We follow the same principle and allow the appeal and set aside the judgment and decree of the Court below and the suit shall stand dismissed. In the circumstances, the parties shall bear their respective costs. (K.M.JOSEPH) JUDGE. (M.L.JOSEPH FRANCIS) JUDGE. MS