Kerala High Court
I.L. Anto vs Kshemavilasom Company Limited on 9 July, 2012
Author: Thomas P.Joseph
Bench: Thomas P.Joseph
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH
TUESDAY, THE 10TH DAY OF JULY 2012/19TH ASHADHA 1934
SA.NO. 949 OF 2000 ( )
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AS.41/1996 OF PRINCIPAL SUB COURT, IRINJALAKUDA
OS.739/1989 OF PRINCIPAL MUNSIFF'S COURT, IRINJALAKUDA
APPELLANTS/RESPONDENTS/DEFENDANTS 1 AND 2:
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1. I.L. ANTO, S/O. LONA, AGED 50 YEARS,
ILLIKKAL HOUSE, NEAR R.C. CHURCH,
EAST CHALAKKUDY VILLAGE,
MUKUNDAPURAM TALUK.
2. K.S. BABU JOSE, S/O. STEPHAN,
AGED 55 YEARS, KANJIRATHINGAL HOUSE,
EAST CHALAKKUDY VILLAGE,
MUKUNDAPURAM TALUK.
BY ADV. SRI.RENJITH THAMPAN
RESPONDENTS/APPELLANTS/PLAINTIFF AND DEFENDANTS 3 TO 5:
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1. KSHEMAVILASOM COMPANY LIMITED,
THRISSUR.
2. THANKAMMA JOSE, W/O.LATE THOTTAN JOSE,
THOTTAM HOUSE, KIZAKKE CHALAKKUDY VILLAGE,
THRISSUR DISTRICT.
S.A.No.949 of 2000
3. RENNY JOSE, S/O. LATE JOSE, DO. DO. DO.
4. RINNY JOSE, D/O. LATE JOSE, DO. DO. (DELETED)
4TH RESPONDENT IS DELETED FROM THE PARTY
ARRAY AS PER ORDER DATED 9.7.2012 ON I.A.
NO.1757 OF 2012
BY ADV. SRI.JIMMY JOHN VELLANIKARAN
THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 10-07-2012,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
THOMAS P.JOSEPH, J.
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S.A. No.949 of 2000
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Dated this the 10th day of July, 2012
J U D G M E N T
Defendants 1 and 2 in O.S. No.739 of 1989 of the court of learned Principal Munsiff, Irinjalakuda are aggrieved by the reversal of the decree by the learned Principal Sub Judge, Irinjalakuda in A.S. No.41 of 1996.
2. First respondent-first plaintiff filed the suit for recovery of money from the appellants and respondents 2 to 4-defendants 3 to 5. First respondent was running a kuri and claimed that the husband of the second respondent and father of respondents 3 and 4 joined the kuri. Appellants and respondents 2 to 5 received Rs.9,800/- by way of auction of the kuri and executed Ext.A1, security bond dated 20.11.1984 undertaking to pay the entire future installments without default. Exhibit A1 also provided that in case of default it is open to the first respondent demand payment of the entire future installments. Appellants defaulted payment from the 29th installment due on 04.03.1986. First respondent issued Ext.A2, demand notice dated 24.05.1989 and as the amount was not paid laid the suit.
3. Appellants and other contesting respondents resisted S.A. No.949 of 2000 -: 2 :- the suit on various grounds including that the suit is barred by limitation. In the course of the suit the first respondent amended the plaint limiting its claim from the 33rd installment onwards due on 04.07.1986. Trial court accepted the plea of limitation and dismissed the suit.
4. First respondent challenged that judgment and decree in A.S. No.41 of 1996. Learned Sub Judge, relying on the decision in Jess Ralph v. Modern Savings (1986 KLT 434) held that it is either Article 36 or 113 of the Limitation Act (for short, "the Act") that applied, all the installments which fell due within three years immediately preceding institution of the suit on 04.07.1989 are recoverable and accordingly granted a decree in favour of the 1st respondent. That judgment and decree are under challenge in this Second Appeal on the following substantial questions of law.
(i) In a suit based on a kuri security bond with an acceleration clause if option was exercised by the foreman for recovering the entire future installments and the suit is filed beyond three years of arising of cause of action whether the suit is S.A. No.949 of 2000 -: 3 :- barred by limitation under Article 37 of the Limitation Act?
(ii) If in a suit based on kuri security bond the foreman does not exercise the option of acceleration clause on the default of installments can the relief of future installments beyond the date of filing of the suit be claimed and decreed?
5. It is contended by the learned counsel for appellants that since Ext.A2, demand was made by the 1st respondent on 24.05.1989, the suit filed on 04.07.1989 is time barred with respect to the defaulted installments. According to the learned counsel the decision in Jess Ralph v. Modern Savings (supra) has no application.
6. The learned counsel for the 1st respondent supported the decision of the first appellate court and relied on the decision in Jess Ralph v. Modern Savings (supra).
7. Facts which are not disputed in this case is that Ext.A1, kuri security bond was executed on 20.11.1984, the 29th installment due on 04.03.1986 was defaulted, Ext.A2, demand notice was issued on 24.05.1989 and suit was filed on 04.07.1989. S.A. No.949 of 2000 -: 4 :- As aforesaid 1st respondent amended the plaint limiting the claim from the 33rd installment onwards which fell due on 04.07.1986. The chitty terminated in February, 1993.
8. In the decision referred above and relied on by the learned Sub Judge it is held that even when there is demand for payment of the entire amount, such of the installments which fell due within three years preceding the institution of the suit could be recovered. It is also held that in situation where a demand has been made for the entire amount, Article 36 or 113 of the Act would apply.
9. Article 36 applies to installment bonds also and time will, in respect of each installment run from the date on which such installment fell due.
10. In the present case the suit having been filed on 04.07.1989, all the installments which fell due on or after 04.07.1986 are recoverable. Though in the plaint as originally laid the claim was for recovery of installments from 29th onwards which fell due on 04.03.1986, obviously on account of the period of limitation prescribed by Article 36 of the Act the plaint was amended whereby the claim was limited from the 33rd installment onwards which fell due on 04.07.1986. Installments S.A. No.949 of 2000 -: 5 :- from 33rd onwards having fallen due within three years immediately preceding the institution of the suit on 04.07.1989 are recoverable and as held in Jess Ralph v. Modern Savings (supra) the question of limitation does not arise. First appellate court was right in allowing the 1st respondent to recover those installments which fell due within a period of three years immediately preceding the institution of the suit.
11. Substantial questions of law framed are answered as above.
Second Appeal is dismissed. No costs.
All pending Interlocutory Applications will stand dismissed.
THOMAS P. JOSEPH, JUDGE.
vsv