VIJAYAN V Vs. LOKA MATHA KURIES P LTD

JUDGEMENT

(1.) The defendants are the appellants. The appeal is directed against the judgment and decree dated 31/05/2005 in OS 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 08/10/1982 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 04/11/1982 agreeing to pay the future subscriptions of 24 instalments from 08/04/1983 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 08/10/1984 to 08/10/1985. The plaintiff filed OS No. 2600/1985 for realisation of the defaulted instalments. The said suit was decreed on 20/03/1989. The present suit was filed for realisation of the defaulted instalments from 08/04/1986 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 Art.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 28/05/1985, that on 08/11/1985, the plaintiff filed OS 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.