IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 26TH MAY 2010 / 5TH JYAISHTA 1932 AS.No. 274 of 1998() -------------------- OS.1001/1993 of I ADDL.SUB COURT,TRIVANDRUM .................... APPELLANT(S): DEFENDANTS: ----------------------------------------------- 1. S.GADHA, D/O.K.SOMAN, WORKING AS JUNIOR LECTURER (BOTANY DEPARTMENT), SREENARAYANA COLLEGE, VARKALA, PALAVILA VEEDU, ALATHARAKKAL, CHENGAL VILLAGE, NEYYATTINKARA TALUK. 2. G.RAMACHANDRAN NAIR, S/O.K.GOVINDA PILLAI, SARADA VILASOM, THITTATTINKARA DESOM, ATTINGAL VILLAGE, CHIRAYINKIL TALUK, WORKING AS JUNIOR ENGINEER, 66 KV SUB STATION, SREENIVASAPURAM, VARKALA. 3. R.RAVEENDRAN NAIR, S/O.RAMAKRISHNA PILLAI, WORKING AS JUNIR ENGINEER, SREENIVASAPURAM, 66 KV SUB STATION, VARKALA, FROM LALITHAVILASOM, TC.2/1595, BURMA ROAD, KUMARAPURAM, MADATHUVILAKOM VILLAGE, THIRUVANANTHAPURAM. BY SRI.N.N.SUGUNAPALAN, SENIOR ADVOCATE RESPONDENT(S): PLAINTIFF: --------------------------------------------- V.R.KARUNAKARAN NAIR, REVATHIPILLA VEEDU, PILLAVEEDU LANE, KESAVADASAPURAM, PATTOM VILLAGE, THIRUVANANTHAPURAM. BY SRI.KRB.KAIMAL, SENIOR ADVOCATE, BY ADV.SRI.K.J.MOHAMMED NAUFAL THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 26/05/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss M.N. KRISHNAN, J. ........................................... A.S.NO.274 OF 1998 ............................................. Dated this the 26th day of May, 2010. J U D G M E N T This is an appeal preferred against the judgment and decree of the Subordinate Judge, Trivandrum in O.S.No.1001/1993. The plaintiff got assignment from South India Chit Funds, the amount due to the chit funds from the defendants as per Ext.A2 and he had moved a suit for realisation of the said amount. It is the contention that the first defendant had joined a kuri conducted by the South Indian Chit Funds and had bid it in auction and thereafter had executed Ext.A1 document thereby undertaking to deposit the balance amount of Rs.21,500/= in 43 equal instalments. For realisation of the said amount, the plaintiff has filed the suit. The defendants had contended that the South Indian Chit Funds is an insolvent company and therefore it did not have the power of assignment and that the plaintiff is not entitled to the amount as claimed in the suit. 2. The court below on appreciation of the materials A.S.NO.274 OF 1998 : 2 : found that there is nothing to show that the South Indian Chit funds had been adjudicated as insolvent or even the factum of pendency of the insolvency proceedings does not stand established. Therefore the court held that the said contention cannot be upheld. Admittedly the first defendant joined the kuri. Amount is due from her along with her sureties to the South Indian Chit Funds. The plaintiff has purchased that right from the South Indian Chit Funds under Ext.A2 which cannot be disputed by the defendants in the case. Therefore by virtue of Ext.A2 it has to be held that the plaintiff is entitled to sue. 3. The next question is regarding the amount. As stated earlier, Ext.A1 clearly shows that an amount of Rs.21,500/= was due to be paid in 43 instalments at the rate of Rs.500/=. It has not been paid and whatever amount is paid including some amount taken for the purpose of participating in the auction had also been taken into consideration by the court below and thereafter the court had fixed the amount at Rs.15,250/=. The court in para-8 had entered into a specific finding that the outstanding A.S.NO.274 OF 1998 : 3 : due was Rs.19,500/= out of which Rs,4,250/= also need to be deducted and arrived at a sum of Rs.15,250/=. 4. The learned counsel for the appellants contends before me that some amount was due from the South Indian Chit Funds to the defendants and therefore, they must be entitled to appropriate that amount. It has to be remembered that the suit is not filed by the South Indian Chit Funds against the defendants. It is filed by the assignee of the South Indian Chit Funds and the assignee has no privity of contract with the defendants so far as it relates to the other claim raised against the South Indian Chit Funds. So in a case of this nature, set off or counter claim cannot be allowed when the said party is not a party to the proceedings and that the plaintiff has no obligation to implead that party as a necessary party. Therefore that contention also has to fail. Similarly the court below has decreased the interest from 20% to 12% till the date of decree and interest at the rate of 6% from the date of decree till realisation. So the matter has been approached in the correct perspective and only the entitled decree is A.S.NO.274 OF 1998 : 4 : granted in favour of the plaintiff. Therefore the appeal filed by the defendants lacks merit and therefore it is dismissed but without costs. M.N. KRISHNAN, JUDGE. cl A.S.NO.274 OF 1998 : 5 : M.N. KRISHNAN, J. ...................................... A.S.NO.274 OF 1998 .................................... 26th day of May, 2010. J U D G M E N T