Kerala High Court
Plaintiff In O.S.No.8/99 vs Defendant In O.S.No.8/99 on 6 October, 1999
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE V.CHITAMBARESH
&
THE HONOURABLE MR. JUSTICE SATHISH NINAN
TUESDAY, THE 10TH DAY OF JANUARY 2017/20TH POUSHA, 1938
AS.No. 352 of 2000 (A)
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AGAINST THE JUDGMENT & DECREE IN OS 8/1999 of I ADDL.SUB
COURT,ERNAKULAM DATED 06-10-1999
APPELLANT(S): PLAINTIFF IN O.S.No.8/99
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CENTRAL BANK OF INDIA HAVING
HEAD OFFICE AT CHANDRAMUKHI, NARIMAN POINT,
BOMBAY AND HAVING BRANCH AT PERUMANOOR,
ERNAKULAM, COCHIN 16,
REPRESENTED BY SRI.K.M.JOSEPH, S/O.MATHAI,
AGED 57 YEARS, REGIONAL MANAGER,
CENTRAL BANK OF INDIA, REGIONAL OFFICE,
ERNAKULAM, COCHIN - 16.
BY ADVS.SRI.V.V.SIDHARTHAN
SRI.T.SAJI
RESPONDENT(S): DEFENDANT IN O.S.NO.8/99
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SAM JOSE, AGED 33 YEARS,
S/O.JOSE KUTTIANI,
M/S.FOUR ACES ADVERTISING,
P.B.NO.2365, DOOR NO.39/4655,
WESTEND TOWERS, PNAMPILLY NAGAR,
KOCHI - 682 016.
THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 06-01-2017,
THE COURT ON 10.1.2017 DELIVERED THE FOLLOWING:
V.CHITAMBARESH & SATHISH NINAN, JJ.
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A.S.No.352 of 2000
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Dated this the 10th day of January, 2017
J U D G M E N T
Chitambaresh, J.
The defendant submitted Ext.A1 application to the plaintiff for issuance of the 'Central card' which is a credit card linked to his account number bearing 5414450004874521. A sum of ` 1,97,803.33 fell due from the defendant to the plaintiff for card usage and accordingly Ext.A2 notice was issued by the plaintiff making a demand. The defendant issued Ext.A3 reply notice stating mainly that the plaintiff has not hitherto furnished statement of accounts despite repeated requests.
2. Ext.A4 letter was accordingly sent by the plaintiff to the defendant forwarding along with it Ext.A5 extract of the statement of accounts in respect of the card usage. Later a sum of ` 1400/- lying in the account linked to the card was credited towards the dues by the plaintiff revealed by Ext.A6 extract of the account. The plaintiff AS.No.352/2000 2 also relies on Ext.A7 terms and conditions of the use of the central card which shows that service charges can also be levied. The suit was laid on 5.1.1999 within three years from 2.5.1998 which was the date on which the sum of ` 1400/- was entered in the card account of the defendant.
3. The plaintiff alone was examined and the defendant neither produced any document nor got himself examined in the suit which was however dismissed on the ground of limitation. The court below has held that the suit was not filed within three years from the last date on which the defendant used his credit card. The court below has also found that the credit card account and the H.S.S. account maintained by the defendant with the plaintiff are not one and the same. The court below has answered the other issues as well though was not obliged after finding at the outset that the plaint claim is barred by limitation.
4.The relevant provisions of the AS.No.352/2000 3 Limitation Act, 1963 which may have a bearing on the question involved in this case are extracted herein below:-
Description of suit Period of Time from which limitation period begins to run 1 For the balance due on Three years The close of the a mutual, open and year in which the current account, where last item admitted there have been or proved is reciprocal demands entered in the between the parties. account; such year to be computed as in the account.
23 For money payable to Three years When the money
the plaintiff or money is paid.
paid for the defendant
The nature of the transactions reveal that it was a mutual, open and current account where there have been reciprocal demands between the parties attracting Article 1 of the Limitation Act. The sum of ` 1400/- was last admitted in the account of the defendant on 2.5.1998 and the suit for realisation of money was filed on 5.1.1999. A period of three years had not elapsed after the AS.No.352/2000 4 last item was admitted in the account and the suit filed was therefore in time.
5. The amount that fell due on account of the card usage has to be replenished by the defendant in his account on demand by the plaintiff making the account mutual and open. The court below erred in holding that the H.S.S. Account and the card account are different overlooking that the card is linked to one account only. There was therefore no justification in calling in aid Article 23 of the Limitation Act, 1963 which applies to simple money transactions. We have no doubt in our mind that the suit has been instituted in time and the court below erred in holding that the suit is barred by limitation. We vacate the findings on the other issues since we do feel that there has been a perfunctory disposal of the suit by the judgment impugned.
6. What exactly is the amount due to the plaintiff on account of the card usage by the AS.No.352/2000 5 defendant and whether service charges could be levied are matters for consideration. We have no option other than to set aside the judgment and decree of the court below and remand the suit for de novo consideration. The parties shall appear in the court below on 30.1.2017 and shall be afforded further opportunity to adduce further oral and documentary evidence if necessary. Needless to say that the court fee paid on the memorandum of Appeal Suit shall be refunded to the appellant in the circumstances of the case.
The Appeal Suit is allowed. No costs.
Sd/-
V.CHITAMBARESH, JUDGE Sd/-
SATHISH NINAN, JUDGE nj/06.01.2017 //TRUE COPY// P.S. to Judge.