IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 13TH JULY 2010 / 22ND ASHADHA 1932 AS.No. 505 of 2002() -------------------- OS.56/1995 of SUB COURT, CHERTHALA .................... APPELLANT(S): DEFENDANTS 2 TO 5: ---------------------------------------------------------- 1. JOSEPH CYRIAC, S/O. KURIAKOSE, CHAIRMAN, M/S. CHENNOTH CHITS PVT.LTD., CHENNOTH KARIYIL, CHERTHALA EAST MURI, KOKKOTHAMANGALAM VILLAGE, CHERTHALA TALUK. 2. SRI.MATHEWS SYRICAC, S/O. KURIAKOSE, MANAGING DIRECTOR, CHENNOTH CHITS PVT.LTD., CHENNOTH KARIYIL, CHERTHALA EAST MURI, KOKKOTHAMANGALAM VILLAGE, CHERTHALA TALUK. 3. SRI.THOMAS CYRIAC, S/O. KURIAKOSE, DIRECTOR, CHENNOTH CHITS (P) LTD., DO. DO. 4. SRI.ANTONY CYRIAC, S/O. KURIAKOSE, DIRECTOR,CHENNOTH CHITS (PVT.) LTD., OF DO. DO. BY ADVS. SRI.JOBY CYRIAC, SRI.FELIX.K.J. RESPONDENT(S): PLAINTIFF & 1ST DEFENDANT: ------------------------------------------------------------------------- 1. JAMESKUTTY THOMAS @ ALIAS JAMESKUTTY JOSEPH, PROPRIETOR OF WAY SIDE, RESIDING AT WAY SIDS INN, MAYITHARA POST, CHERTHALA SOUTH VILLAGE,..DO..MURI, CHERTHALA TALUK. 2. M/S. CHENNOTH CHITS PRIVATE LTD., REGISTERED OFFICE AND HEAD OFFICE AT KARUNAKARA BUILDINGS, CHERTHALA REPRESENTED BY ITS CHAIRMAN. R1 BY ADVS. SRI.JOHN JOSEPH(ROY), SRI.G.N.NAIR, SMT.G.N.JEEJA, SMT.G.N.DEEPA. R2 BY ADV. SRI.P.S.GEORGE THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 13/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss ORDER ON CMP.NOS.6198/2002 AND I.A.NO.1008/2009 IN AS.NO.505/2002 DISMISSED 13/07/2010 SD/- M.N.KRISHNAN, JUDGE /TRUE COPY/ P.A.TO JUDGE Kss M.N. KRISHNAN, J. = = = = = = = = = = = = = = = A.S. No. 505 OF 2002 = = = = = = = = = = = = = = = Dated this the 13th day of July, 2010. J U D G M E N T This appeal is preferred against the judgment and decree passed by the Subordinate Judge, Cherthala in O.S.56/95. The suit is one for realisation of the amount due to the plaintiff from the defendants. It is the case of the plaintiff that he had joined a kuri conducted by the first defendant with a sala of Rs.3,000/- per month and that he had paid 27 instalments. The plaintiff has deposited an amount of Rs.50,130/-. After the 27th instalment when he approached the Company, there was no Company there and therefore he could not remit the amount and therefore has requested to pay back the amount which had been deposited by him. A.S. No. 505 OF 2002 -2- 2. On the other hand all possible contentions had been taken by the defendants. They had even disputed the identity of the plaintiff. They have also raised a plea of limitation. They had raised another contention that for the same transaction Rs.33,000/- had been paid as per the order in Negotiable Instruments Act case and lastly it is contended that there cannot be any personal liability for the directors. 3. So far as the first point is concerned it is admitted that the plaintiff has joined a kuri conducted by the first defendant. He had also remitted 27 instalments. Further deposit became impossible on account of the non functioning of the first defendant company. Therefore whatever amount the plaintiff has deposited he is entitled to get back and it will A.S. No. 505 OF 2002 -3- come to Rs.50,130/-. The next is regarding the limitation. The first defendant company was bound to conduct the chit till the 40th instalment. It was on account of its negligence or inaction it cannot continue. Therefore the plaintiff can afford to wait till last and file a case within time and therefor there is no limitation. 4. The third point is regarding the identity of the party. In another connected case where an action was initiated u/s 138 of the Negotiable Instruments Act the matter came up to this Court and it is found that Jameskutty Thomas @ Jameskutty Joseph are one and the very same person. Therefore that will not detain us so long. 5. Lastly regarding the liability. Learned Subordinate Judge in paragraph 12 of the A.S. No. 505 OF 2002 -4- judgment had made it very clear that “So the suit will be decreed only against the first defendant company including the Board of Directors.” But when it came into the operative portion the Court has decreed the suit for realisation of the amount from the defendants and their assets jointly and severally. There cannot be any personal liability for the Directors. So whatever assets are available with the company or whatever assets of the company are available with the Directors, it can be proceeded against for realisation of the amount. Therefore the decree is to be modified accordingly. Therefore the appeal is disposed of as follows. 6. A revised decree is passed and the plaintiff is given a decree for realisation of Rs.58901.10 with interest at 6% per annum on the A.S. No. 505 OF 2002 -5- principal amount of Rs.50,130/- from the date of suit till the date of realisation from the first defendant and its assets and also the assets of company if any, in the possession of the other defendants. I make it clear there shall not be any personal liability for the Directors. Parties shall bear their respective costs. M.N. KRISHNAN, JUDGE. ul/- A.S. No. 505 OF 2002 -6- M.N. KRISHNAN, J. = = = = = = = = = = A.S. No. 505 OF 2002 = = = = = = = = = = = J U D G M E N T 13th July, 2010.