IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID FRIDAY, THE 26TH JUNE 2009 / 5TH ASHADHA 1931 RSA.No. 1288 of 2008() ---------------------- AS.75/2007 of ADDL. DISTRICT COURT, PARAVUR OS.152/2005 of MUNSIFF COURT,ALUVA .................... APPELLANT/APPELLANT/DEFENDANT ----------------------------- T.S. MADHAVAN, AGED 74, S/O. THAIKOOTHATHIL SANKU, THAIKOOTTATHIL HOUSE, PATTANAM KARA, VADAKKEKARA VILLAGE, PARAVUR TALUK. BY ADV. SRI.P.N.RAMAKRISHNAN NAIR SRI.P.VISWANATHAN SRI.AJU MATHEW RESPONDENT(S): RESPONDENT ------------------------- MUNDADAN CHITTIES, ANGAMALY, REPRESENTED BY MANAGING PARTNER, JOSEPH THARIAKKO MUNDADAN, AGED 59, S/O.LATE THARIAKKO, RESIDING AT HOUSE NO.565 (CHURCH NAGAR C.N 170) WARD NO.XIX, ANGAMALY KARA, ANGAMALY VILLAGE, ALUVA TALUK. ADV. SRI.PIUS C.MUNDADAN FOR R1 SMT.ANJU DIVAKAR FOR R1 THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 26/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER IN I.A. NO. 2802 OF 2008 IN R.S.A. NO. 1288 OF 2008 DISMISSED SD/-HARUN-UL-RASHID, JUDGE 26.6.2009 HARUN-UL-RASHID, J. ---------------------------------------- R.S.A.No.1288 of 2008 ---------------------------------------- Dated this the 26th day of June, 2009 JUDGMENT The Second Appeal is directed against the judgment and decree in A.S. 75/2007 on the file of the District Court, North Paravur which arises from the judgment and decree in O.S. No. 152 of 2005 on the file of Munsiff's Court, Aluva. The suit was filed for realisation of money due to the plaintiffchitty company from the defendant who is a chitty subscriber. The trial court repelled the contentions of the defendant and held that the plaintiff-firm is entitled to recover the plaint amount from the defendant. Accordingly a decree for realisation of Rs. 51,823.50 was passed together with interest at 18%per annum. The said decree and judgment was confirmed by the lower appellate court The appellant herein is the defendant in the suit. The parties hereinafter referred to as plaintiff -firm and defendant as arrayed in the suit. 2. The defendant/appellant challenged the trial court's judgment and decree before the lower appellate court. The lower appellate court elaborately considered the only question “whether the suit is barred by limitation or not ? “ and decided the appeal in favour of the plaintiff-firm. All other questions were also decided on the basis of facts evidence and circumstances and the learned District Judge agreed with the trial court's findings. It is not disputed that the defendant has committed default in R.S.A. No. 1288 of 2008 -2- payment of the chitty subscription from the 20th instalment and the amount sought to be recovered from the defendant is the balance amount to be paid in the chitty transaction conducted by the plaintiff-firm. The lower appellate court found that the chitty terminated on 15.5.2002 and the suit is filed on 30.3.2005 and the filing of the suit is within 3 years from the date of termination of the chitty period. Following the principles laid down in the decision in C.Dhannam Vs. A.M. Sreenivasan and others ( AIR 2006 Madras 210), the lower appellate court held that the starting point of limitation would be the date of termination of the chitty period and not date of default. It is also held that the cause of action for the suit as mentioned in the plaint is the conclusion of the chitty period and the subscription is payable as on the said date. 3. The learned counsel for the defendant/appellant after referring to certain decisions of this Court, contended that the starting point of limitation would be the date of default and not the date of termination of the chitty period. According to him the courts below ought to have seen that the suit is barred by limitation since even according to the plaintiff-firm the defendant had committed default from 15.11.2000. He also contended that the plaintiff-firm has no cause of action against the defendant for filing the suit since there was no demand from the side of the plaintiff-firm . 4. The Madras High court in C. Dhanam's case (supra)held R.S.A. No. 1288 of 2008 -3- that : “ Suit in relation to the chitty transaction limitation suit filed on the basis of termination of chit period and not on the basis of promissory note or bond. Starting point of limitation would be the date of termination of the chitty period and not date of default. Article 113 and not Article would be applicable” I find that the Madras High court had opined so, after referring to various Apex Court decisions and High court decisions. It is not possible for me to take a different view from the view taken by the Madras High Court. The findings of the courts below are correct , based on facts evidence and circumstances, and cannot be interfered with. No questions of law much less any substantial question of law arises for consideration in this appeal. There is also no scope for invoking Section 100 of the C.P.C.. This appeal fails and accordingly dismissed. (HARUN-UL-RASHID, JUDGE) es. HARUN-UL-RASHID, J. --------------------------- R.S.A. No.1288 of 2008 ---------------------------- JUDGMENT 26th June, 2009