IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH AT HYDERABAD (SPECIAL ORIGINAL JURISDICTION) THURSDAY, THE SIXTEENTH DAY OF DECEMBER TWO THOUSAND AND TEN THE HON’BLE SRI JUSTICE N. RAVI SHANKAR C.C.C.A No.50 of 1998 Between: New Melap Company, Fruit Commission Agent, Rep. by its partner, Khaji Mohd. Abdul Khader, S/o. Khaji Mohd. Anwaruddin, Aged 65 Years, Business, R/o. Goshamahal, Hyderabad And another. - - - APPELLANT(S)/ DEFENDANT(S) a n d M/s. Sri Mallikharjuna Chit Funds and Financiers, Rep. by its Foreman and partner, Sri V. Veeresham, S/o.Sangappa, 40 years, Business, R/o.5-1-908, Koti, Hyderabad. - - - RESPONDENT(S)/ PLAINTIFF(S) This Court made the following : THE HON'BLE SRI JUSTICE N.RAVI SHANKAR C.C.C.A. No.50 of 1998 ORDER: Defendants who are two in number in O.S.116 of 1992 a chit fund suit on the file of the Court of VII Additional Judge, City Civil Court, Hyderabad (trial Court) are appellants in this first appeal. The Respondent - chit fund company brought the said suit for recovery of a sum of Rs.1,57,800/- i.e., Rs.90,000/- towards the unpaid 15 monthly subscriptions due from the first defendant i.e. prized subscriber and Rs.67,800/- towards interest up to the date of the suit at the rate of 18% per annum from him thereon. The second defendant is arrayed as the guarantor. 2) The trial Court after a contest decreed the said suit for Rs.1,57,800/- with subsequent interest at 12% per annum from the date of the suit to the date of decree and at 6% per annum till realization on the amount of Rs.90,000/- against both the defendants holding them jointly and severally liable. Questioning the said judgment and decree of the trial Court, defendants filed this Appeal. For convenience the parties shall hereafterwards be referred to as they are arrayed in the suit. The details of the oral and documentary evidence let in by the plaintiff and the documentary evidence let in by the defendants are given in the appendix of evidence given at the foot of the trial Court’s judgment and there is no dispute regarding the admissibility of the said evidence. The documents relevant to the points raised in this appeal shall be referred to in this judgment. 3) A reading of the trial Court judgment and also the arguments advanced by the learned counsel for the defendants in this Appeal would show that there is no dispute regarding the payment of prize amount to the first defendant and the second defendant standing surety for repayment of the same to the plaintiff chit-fund company. No dispute is also raised regarding the amounts due and claimed by the plaintiff. 4) The learned counsel for the defendants however raised two points in this Appeal. The first is that the plaintiff chit- fund company which is said to be a registered firm did not produce any document or material to show who are its partners and that is fatal to the suit. The second point urged by him is that the promissory note and the guarantee bond executed by the first defendant and second defendant respectively are dated 14.05.1987 and the suit was filed on 18.12.1991 i.e., the first date on which the plaint was presented and therefore the suit is barred by limitation as it was filed beyond three years from 14.05.1987. The trial Court rejected both these points. The learned counsel for the plaintiff on the other hand argued that the conclusion of the trial Court on both the points is correct and judgment under appeal does not call for any interference. 5) Coming to the first point raised on behalf of the defendants, it may be noted that a perusal of the trial Court record shows that the defendants did not call upon the plaintiff’s counsel or the plaintiff in writing to declare the names of the partners and their places of residence as contemplated under Rule 2 of Order XXX CPC which deals with suits filed against firms or brought by the firms. In fact, the judgment of the trial Court shows that it considered this aspect and rejected the defendants contention in their behalf on the above ground. Thus, the question of a firm giving particulars of its partners would arise only when the defendants make a demand for it and in the absence of any such demand the suit proceedings cannot be stopped or rejected because of the failure of the partner who brings the suit on behalf of the firm to furnish particulars of the other partners as such a situation is not visualized by Rule 2 of Order XXX CPC. Thus, having regard to the failure of the defendants to call upon the plaintiff or its partner who brought the suit in the name of the plaintiff firm to furnish particulars of all partners, the above contention relating to the first point raised on behalf of the defendants has to be rejected. 6) The learned counsel for the defendants however placed reliance upon a decision of this Court given in ANNAPURNA F.&G. STORES vs. ARUNODAYA F.&G. STORES[1] in connection with his contention on the first point. The principle laid down in this decision is that where on the date of the suit a partnership firm is not registered as stipulated in Section 69(2) of the Partnership Act but subsequently during the pendency of the suit it is registered such registration will not cure the defect. This decision has no relevance to this first point raised by the defendants counsel and it is not known why this is cited. Even with regard to registration of the plaintiff firm, the plaintiff has filed Ex.A.7 acknowledgment of the registration of the firm pertaining to the plaintiff issued by the concerned Registrar of Firms. This certificate shows that the plaintiff firm’s registration number is 5574 of 1983 and the certificate was issued on 24th October, 1983. The suit was filed in 1991. It is not the case of the defendants that the plaintiff firm was not registered as on the date of the suit. Thus, the defendants contention even on the aspect of registration cannot be accepted. 7) Then turning to the second point urged on behalf of the defendants which relates to limitation, it is true that Ex.A.1 promissory note and Ex.A.2 security bond are dated 14.05.1987 and the suit was first presented on 18.12.1991 and this is beyond three years from the date of Exs.A.1 and A.2. If the suit is treated as one based on promissory note alone it can be said that it is barred by time in view of Article 35 of the Limitation Act but that is however not the case here. The transaction between the plaintiff and defendants is a chit fund transaction and it is governed by Ex.A.3 agreement of chit. The first defendant was a prized subscriber and the second defendant was a guarantor. Under the chit agreement the period of chit was for 25 months i.e. from 30.12.1986 + 25 months i.e. up to 30.01.1989. 8) It may also be noted that the first defendant became prized subscriber on 30.04.1987 and it is clear that he was paid the amount due to him after the deductions on 14.05.1987. It may then be noted that clause 15 of Ex.A.1 agreement provides that if the prized subscriber commits a default in paying the monthly subscriptions consecutively for a period of three months the prized subscriber will lose the future dividends and the benefit of paying the future subscriptions and others things are mentioned. The very same clause 15 also shows that the foreman can condone the default and then continue the prized subscriber in the chit scheme if the later pays certain amounts and this discretion for the prized subscriber was available till the end of the chit period. Thus, despite the default committed by the prized subscriber it can be said that cause of action for filing the suit in a case like this would arise only on the expiry of the chit period i.e. 30.01.1989. 9) The learned counsel for the defendants could not show any provision or any precedential authority to hold that the period of limitation should be reckoned only from the date of the promissory note executed by the first defendant i.e. the prized subscriber. In fact, the promissory note in a case like this is taken as a collateral security. The learned counsel for the defendants could not also show any specific article in the Limitation Act which says that in a case like this the limitation should be reckoned only from the date of the promissory note and not the date of the expiry of the chit period stipulated in the chit agreement. Thus, in my opinion, a suit like this would fall under Article 113 of the Limitation Act which is the residuary Article. Under Article 113, the period of three years limitation for suits covered by it would commence when the cause of action arises. In the present case the cause of action can be said to have been arisen only on the expiry of the chit period i.e. 30.01.1989 and the suit which is filed on 18.12.1991 is clearly within three years from that date and therefore the suit can be said to be within limitation. Accordingly, the contention of the defendants on the second point is also rejected. 10) The learned counsel for the defendants as already mentioned supra did not dispute about the principal amounts and the interest amounts claimed up to the date of the suit and also the rate of interest granted by the trial Court subsequently up to the date of decree and date of realization. Therefore, the said questions are not considered. 11) Accordingly, for the aforesaid reasons, it follows that this appeal must fail and the same is dismissed with costs. ______________________ N.RAVI SHANKAR, J 16th December 2010 Dsh/CVRK [1] AIR 1994 AP 157 (D.B.)