IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI FRIDAY, THE 14TH AUGUST 2009 / 23RD SRAVANA 1931 AS.No. 560 of 1998() -------------------- OS.415/1992 of ADDL.SUB COURT, IRINJALAKUDA .................... APPELLANT(S): PLAINTIFF -------------- SUPREME FINANCIERS AND KURIES CHENTRAPPINNI, KODUNGALLUR TALUK REP. BY MANAGING PARTNER JAYAPRAKASAN, S/O KARAYIL THEKKUTT KUNJI RAVUNNY, VALAPPAD VILLAGE, CHAVAKKAD TALUK BY ADV. SRI.V.GOPAKUMAR SRI.RAMANATH RESPONDENT(S): DEFENDANTS --------------- 1. ASANIDHI, S/O KOLLAMPARAMBIL SANKARAN EDAMUTTAM DESOM, CHAVAKKAD TALUK 2. SUSHAMA, W/O VAZHAPPILLY MADHAVA BABU KAZHIMBRAM DESOM, CHAVAKKAD TALUK 3. JAGADESAN, S/O MEENAKSHY NILAYATHIL ANANTHA KRISHNAN, VADAKKUMTHARA VILLAGE PALAGAT TALUK 4. THILOTHAMA, W/O VASHAPPILLY RAMAN KAZHIMBRAM DESOM , DO. ADV. SRI.THOMAS NINAN THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 14/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.Q.BARKATH ALI, J. - - - - - - - - - - - - - - - - - - - - - A.S.No.560 OF 1998 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 14th day of August, 2009 JUDGMENT Challenge in this appeal by the plaintiff is to the judgment and decree of the Subordinate Judge, Irinjalakkuda dismissing the suit for recovery of the amount due under a chitty transaction. 2. The appellant/plaintiff is M/s. Supreme Financiers and Kuries , Chendrappinni represented by its Managing Partner and is the Foreman of a chitty. First respondent/first defendant was a subscriber to a chitty conducted by the appellant company. He bid in auction the chitty and received the bid amount and executed Ext.A1 bond along with respondents/defendants 2 to 4, who are the sureties on October 14, 1988. It is stipulated in the bond that in case of default of one instalment, the respondents/defendants have agreed to pay the entire amount in lump sum with interest at the rate of 18%. The first defendant/respondent has defaulted from the date of 10th instalment. Inspite of the notice - Ext.A2 dated December 29,1990, the respondents/defendants did not pay the amount. Subsequently, the A.S.No.560/1998 2 appellant/plaintiff amended the plaint for realisation of the amount due from 17th instalment which fell due on August 15, 1989. The respondents/defendants in their written statement contended that suit is barred by limitation as the cause of action arose on October 14,1988 and Ext.A1 was executed on January 15, 1989 which is the first date of default. In the additional written statement, they disputed the abandonment of the amount due from 15th January 1989 till 15th July 1989. PW1, the Managing Partner of the appellant/plaintiff was examined and Exts.A1 to A10 were marked on the side of the appellant/plaintiff before the lower court. No evidence was adduced by the respondents/defendants. The lower court on an appreciation of evidence found that the claim is barred by limitation and dismissed the suit. Now the plaintiff has come up in appeal. 3. The only question which arises for consideration is whether the claim of the appellant/plaintiff is barred by limitation. 4. The lower court found that Article 37 of the Limitation Act is applicable to this case and that subsequent amendments of the plaint do not amount to waiver on the part of the plaintiff regarding the A.S.No.560/1998 3 amount which are barred by limitation. The lower court has also cited the decision reported in Krishnan Madhavan v. Narayanan Jayadevan (1974 KLT 534). But the above decision has been overruled by a Division Bench of this court in Sukumaran v. Sankaran (1977 KLT 833) wherein it has been held that in cases covered by Section 32(1) of Travancore Chitties Act where cause of action will accrue to the Foreman only when a submission in writing is made for consolidated payment of all the future subscriptions. But in the present case it is not governed by Section 32(1) of Travancore Chitties Act. It is governed by Section 29(1) of Kerala Chitties Act 1975 which reads thus : “A foreman shall not be entitled to claim consolidated payment of all the future subscriptions form a defaulting prized subscriber unless he shall have demanded the same in writing.” 5. Therefore the right of the Foreman to claim the consolidated amount arise only when a written demand is made. That being so, the principles laid down in Sukumaran v. Sankaran (1977 A.S.No.560/1998 4 KLT 833) applies to this case also. In this case, notice was issued on December 29,1990 and the suit has been seen filed on 24th July, 1992 which is within three years of the date of issuance of notice. Therefore, the finding of the lower court that the suit is barred by limitation cannot be sustained. 6. There is another aspect. It has been further held in the above decision that it is Article 113 and not Article 37 of the Limitation Act that governs the case. That being so, the plaintiff can recover only the amount of such of the instalments as has fallen due within three year's prior to the date of institution of the suit. Subsequently, the appellant/plaintiff has amended the plaint and claimed the amount which has fallen due within three years prior to the date of suit. That amendment was allowed by the lower court as per order in I.A.No.8090/95 dated 30-09-1986 which was challenged by the respondents/defendants in C.R.P.No.2311/1996 before this court and this court has allowed the said amendment. That being so, the suit is maintainable. In the light of my above findings, the decree of the lower court dismissing the suit has be set aside and suit has to be decreed as A.S.No.560/1998 5 prayed for with costs. In the result, the decree of the lower court dismissing the suit is set aside . The suit is decreed for Rs. 27,295/- with interest at the rate of 18% per Annum from the date of suit till the date of decree and future interest at the rate of 6% per Annum from the date of decree till realisation. The plaintiff can realise the same from the defendants personally and from their assets and is also entitled to costs throughout. P.Q.BARKATH ALI JUDGE sv. A.S.No.560/1998 6