: Subscribers become debtors for prized amount; provisions enabling foremen to realize entire future instalments with interest are upheld.

1. Plaintiff in O.S.No.290 of 1982 on the file of the Sub Court, Trichur is the appellant. Suit was for realisation of amount on the basis of kuri security agreement.

2. Plaintiff company started a kuri from its Bangalore branch on 5-6-1979. Ist defendant was a subscriber. Defendants prized the kuri and received the amount and they executed a security agreement on 30-1-1980 in favour of the plaintiff agreeing to pay a sum of Rs.10,300/- being the amount due for the future 103 instalments at the rate of Rs.100/- per month from 5-2-1980 onwards. They also agreed that in case of default of one instalment, the subscription for that month shall be paid with 12% interest on the date of the next instalment. In case of default of the subsequent instalment also, the Foreman shall be entitled to realise the entire future instalments in lump with 12% interest on the whole amount from the date of 1st instalment and that the defendants shall be liable jointly and severally for the amount due. They paid subscription upto 5-10-1980 and committed default from 5-11-1980 onwards. Inspite of demand made for payment of the subscription, they failed to pay the amount. In the circumstances, plaintiff filed the suit for realisation of the entire instalments together with interest.

3. Defendants filed a joint written statement stating that they were prepared to discharge the defaulted subscription and the suit filed for the entire future instalments is not maintainable.

4. The court below relying on a Full Bench decision of this court in Janardhana Mallan & others v. Gangadharan & others (1983 KLT 197) held that the plaintiff is entitled to recover only the defaulted instalments and not the entire instalments and in that view of the matter, a decree was given in favour of the plaintiff for realisation of a sum of Rs.2,230/- with costs and 6% interest on the principal amount from the date of suit till realisation.

5. In this appeal, learned counsel for the appellant contended that in view of the Supreme Court decision in K.P. Subbarama Sastri and others v. K.S. Raghavan and others (AIR 1987 SC 1257), the Full Bench decision referred to above is no longer good law. In the decision which came up for the consideration of the Supreme Court referred to above, the Supreme Court has approved the Full Bench decision of this court in P.K. Achuthan v. State Bank of Travancore, Calicut (1974 KLT 806 (F.B.). A similar question came before a larger Full Bench of this court, consisting of 5 Judges, in Janardhana Mallan's case (supra). After discussing the question and reviewing the decision of the earlier Full Bench in Achuthan's case (supra), the court observed thus:

"In the light of the above discussion, we do not think it would be possible to say that on entering into the chitty agreement a debt is incurred by the subscriber for the amount of all the future instalments and in respect of such amount there is a debtor-creditor relationship. As we have stated earlier in this judgment the chitty variola only embodies a promise to pay on future dates. That is not a promise to repay an existing debt, but to pay in discharge of a contractual obligation. For similar reasons neither the prizing of the chitty nor the execution of the security bond would give rise to a debt, for the prize amount is not received as a loan, but as of right by virtue of the terms of the contract between the parties. We reiterate that the provisions of the relevant Acts relating to chitties to which we have made advertence also only indicate this. In this view we are of the opinion that to the extent the earlier decision of the Full Bench in Achuthan's case, (1974 KLT 806: (AIR 1975 Ker. 47) has referred to the creation of the debtor-creditor relationship on the prizing of the chitty and the execution of the security bond we respectfully differ. The decision of the Division Bench in 1976 KLT 205: (AIR 1977 Ker. 8) which follows the Full Bench decision must also therefore be found to ha