IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 10TH NOVEMBER 2009 / 19TH KARTHIKA 1931 RSA.NO. 463 OF 2009() --------------------- AS.251/2005 OF I ADDL. DISTRICT COURT, PALAKKAD O.S. NO.1016 OF 2000 OF MUNSIFF'S COURT, PALAKKAD .................... APPELLANTS/APPELLANTS/DEFENDANTS 1 & 2 ------------------------------------------- 1. C.RADHAKRISHNAN, S/O. GOPALAN NAMBIAR, AGED 67 YEARS, SREE LAKSHMI, NO.7, ALAMU NAGAR, SATHYAMANGALAM ROAD, COIMBATORE. 2. M.K.SYAMALA, W/O. C.RADHAKRISHNAN, AGED 57 YEARS, SREE LAKSHMI, NO.7, ALAMU NAGAR, SATHYAMANGALAM ROAD, COIMBATORE. BY ADV. SRI.RAJESH SIVARAMANKUTTY RESPONDENT(S): RESPONDENTS/PLAINTIFF & DEFENDANT NO.3 ----------------------------------------------------- 1. M/S. HEMAMBIKA CHITTIES AND LOAND (P) LTD., BY CHAIRMAN ACHUTH BHASKAR, S/O. LATE A.K.ACHUTHA MOOTHAN, AGED 76 YEARS, ENNAKOTTIL STREET, BIG BAZAAR, KOPPAM AMSOM, PALAKKAD DIST. 2. K.K.SIVAKUMAR, S/O. LATE K.S.KRISHNAN, AGED 45 YEARS, RESIDING AT SIVA NILAYAM, THARAGAR LANE, NEAR BIG BAZAAR, PALAKKAD DIST. ADV. SRI.V.CHITAMBARESH, SENIOR ADVOCATE FOR R1 SRI.T.C.SURESH MENON FOR R1 SRI.JIBU P THOMAS FOR R1 SRI.P.S.APPU FOR R1 SRI.A.R.NIMOD FOR R1 SRI.C.A.ANOOP FOR R1 THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 10/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = = = = = = = = = = R.S.A. NO.463 OF 2009 = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 10th day of November, 2009 J U D G M E N T ---------------------- Second Appeal arises from judgment and decree of learned First Additional District Judge, Palakkad in A.S. No.251 of 2005 confirming judgment and decree of learned Munsiff, Palakkad in O.S. No.1016 of 2000. 2. Appellant No.1/defendant No.1 subscribed to a Kuri run by respondent No.1 at Faridabad and prized the same on 8.6.1992. He received the amount and along with the sureties executed documents in favour of respondent No.1 undertaking to pay the future instalments without default. According to respondent No.1, appellant No.1 and his sureties failed to pay the future installments and hence the suit. Appellants contended that suit is barred by limitation. They also contended that the Kuri was run in violation of the Kerala Chitties Act and hence the suit is not maintainable. Courts below answered the issues in favour of respondent No.1. However, decree was confined to realisation of such of the installments which fell due within a period of three years preceding the institution of the suit. Interest on that amount was allowed at the rate of 6% per annum. First Appellate Court confirmed that judgment and decree. Hence the Second R.S.A. NO.463 OF 2009 -: 2 :- Appeal. It is contended by learned counsel for appellants that there was no debt payable to respondent No.1 on the date of suit and hence the suit is not maintainable. Reliance is placed on the decision in John v. Oriental Kuries Ltd. (2009 (1) KLT 856). It is also contended that at any rate respondent No.1 could not have claimed interest on future installments payable at the time of institution of the suit. Learned counsel for respondent No.1 submitted that no substantial question of law is involved requiring interference in Second Appeal. 3. So far as the issue of limitation is concerned, trial court found and first appellate court confirmed that only such of the installments which fell due within three years preceding the institution of the suit is recoverable and decree is granted accordingly. Therefore on the issue regarding limitation no substantial question of law is involved. 4. It is contended by learned counsel relying on the decision in John's case that suit is not maintainable. There it was held that only when there is a default for payment of future installments there would be a debt. In this case it is not disputed that on the date of institution of the suit installments payable till that date had been defaulted. Hence there was a debt due in favour of respondent No.1 and on the terms of the agreement between the parties it was within the power of respondent No.1 to claim the entire amount payable R.S.A. NO.463 OF 2009 -: 3 :- including future installments. 5. So far as the contention that provisions of the Kerala Chitties Act have been violated is concerned, evidence is that Chitty was started and run at Faridabad. This Court has held in Nadarajan v. Nadarajan (1999 (2) KLT 512) that in such situation there is no violation of the provisions of the Kerala Chitties Act. 6. Last argument advanced is that as on the date of institution of the suit no interest was payable on the installments after the institution of the suit. But it is not disputed that on the date of decree passed by the trial court, the entire installments had fallen due and payments were defaulted. Therefore trial court was justified in granting interest on the disputed installments allowed to be recovered. 7. On hearing counsel on both sides I find that no substantial question of law is involved in the Second Appeal requiring its admission. Second Appeal is dismissed in limine. Interlocutory Application No.1059 of 2009 shall stand dismissed. THOMAS P.JOSEPH, JUDGE. vsv R.S.A. NO.463 OF 2009 -: 4 :- THOMAS P.JOSEPH, J. =================== R.S.A. NO.463 OF 2009 =================== J U D G M E N T 10TH NOVEMBER, 2009