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IN THE HIGH COURT OF KERALA
HARUN-UL-RASHID, J.
V. Vijayan, Senior Assistant in Telc, Angamaly, S/o. Aanamari Velandi and Ors. - Appellants
Versus
Loka Matha Kuries (P) Ltd. - Respondent
RFA. No. 633 of 2005
Decided On : 10-04-2012
Kuri Transaction - Limitation - Travancore Chitties Act - Article 37 of the Limitation Act - P.J. Kuriakose v. K.C Cherian (1984 KLT 744), Kochappan v. Official Liquidator (1977 KLT 482), Sukumaran v. Sankaran (1977 KLT 833), Jess Ralph v. Modern Savings (1986 KLT 434)
Fact of the Case:
The plaintiff, a Kuri company, filed a suit for realization of money due under chitty transaction. The defendants contended that the suit was barred by limitation as it was filed three years after the alleged cause of action.
Finding of the Court:
The court found that the suit was not barred by limitation as the plaintiff had reserved the right to file a fresh suit for the defaulted instalments subsequent to a previous suit. The court also held that the plaintiff was entitled to a decree for instalments due within three years of the date of the suit.
Issues: The main issue was whether the suit was barred by limitation and whether the plaintiff was entitled to realize the amount claimed in the plaint.
Ratio Decidendi: The court relied on the provisions of the Travancore Chitties Act and the interpretation of Article 37 of the Limitation Act. It held that the foreman is entitled to claim consolidated payment of future subscriptions only on making a written demand, and the starting point of limitation is when the written demand is made. The court also applied the principles established in the cases of P.J. Kuriakose v. K.C Cherian, Kochappan v. Official Liquidator, Sukumaran v. Sankaran, and Jess Ralph v. Modern Savings.
Final Decision: The court modified the decree and granted the plaintiff a decree for the amount due under the instalments within three years of the date of the suit, vacating the previous decree for the amount due under the defaulted instalments and future instalments.
Harun-Ul-Rashid, J.
The defendants are the appellants. The appeal is directed against the judgment and decree dated 31.5.2005 in O.S.No.341/1990 on the file of the 1st Additional Sub Court, Thrissur. Suit was filed for realization of money due under chitty transaction. The court below decreed the suit with costs. It is declared that the plaintiff is entitled to realise Rs.53,280/- with interest for the principal sum of Rs.36,000/- at the rate of 12% interest from the date of suit till the date of decree and thereafter at the rate of 6% till realisation of the amount with cost from the defendants and their assets. The parties hereinafter are referred to as the plaintiff and defendants as arrayed in the suit.
2. The facts of the case are not in dispute. The plaintiff is a Kuri company. The Kuri was started on 8.10.1982 in which the 1st defendant subscribed the 44th ticket of that Kuri. The Kuri amount is payable by half yearly instalments of Rs.2,000/- in April and October. The Kuri was prized in favour of the 1st defendant. Defendants 1 to 5 executed 'kuri karar' on 4.11.1982 agreeing to pay the future subscriptions of 24 instalments from 8.4.1983 regularly and in default of any one of the instalment, agreed to pay the consolidated amount of future subscriptions with 12% interest. The defendants defaulted instalments from 8.10.1984 to 8.10.1985. The plaintiff filed O.S.No.2600/1985 for realisation of the defaulted instalments. The said suit was decreed on 20.3.1989. The present suit was filed for realisation of the defaulted instalments from 8.4.1986 and for future instalments.
3. The defendants filed written statement contending that the suit has been filed three years after the alleged cause of action and therefore, the suit is barred by limitation. It is stated that there is no specific waiver as per Article 37 of the Limitation Act and hence the entire plaint claim is barred by limitation. It is stated that as per the 'Kuri Karar' the plaintiff is entitled to realise the entire Kuri amount with interest, that the plaintiff had sent a lawyer notice on 28.5.1985, that on 8.11.1985, the plaintiff filed O.S. No. 2600/1985, that the suit was decreed ordering realisation of defaulted instalments from October 1984 to October, 1985, that since the plaintiff failed to claim the defaulted instalments after October, 1985, within the period of limitation, he had relinquished his right to realise the future amount and therefore, the suit is not maintainable.
4. The plaintiff was examined as PW1 and Exts.A1 to A5 were marked. Defendants examined DW1.
5. The trial court framed issues as to whether the suit is barred by limitation, whether the suit is maintainable and whether the plaintiff is entitled to realise the amount claimed in the plaint. Ext.A1 is the Kuri karar executed by the defendants on 4.11.1982. The Kuri karar contains provision for realisation of the consolidated amount of future instalments with 12% interest, if default is made. As per the Kuri karar, the defendants agreed to pay the future subscription for 24 instalments from 8.4.1983 and in default of any one of the instalment, agreed to pay the consolidated amount. Defendants defaulted the instalments from 8.10.1984 to 8.10.1985. The plaintiff filed O.S.No.2600/1985. That suit was decreed. Ext.A2 dated 20.3.1989 is the certified copy of the decree in O.S.No.2600/1985. Ext.A3 is the written statement filed in the said suit. Ext.A5 is the certified copy of the judgment in O.S.No.2600/1985. In the said suit, plaintiff filed I.A.No.3950/1985 seeking leave of the court to file a fresh suit for the defaulted instalments made after 8.10.1985. The said I.A was allowed. Ext.A4 is the certified copy of the order in the I.A. The order of the court is endorsed on Ext.A5. The present suit is filed on the basis of the order in Ext.A4 for the consolidated amount for 18 instalments since 8.4.1986. The present suit was filed on 10.4.1999. It is contended by the defendants that as t
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