NARAYANAN NAMBIAR Vs. KRISHNA MENON

JUDGEMENT

(1.) Defendant No. 13 is the appellant. The question for decision in this second appeal is one relating to limitation. The suit is on a kuri security bond executed by defendants 1 to 3 on 15.11.1102 in favour of the plaintiff Yogam. Defendant No. 13 is a vendee of item No. 1 of the plaint schedule. The kuri security bond provided that if default was committed in the payment of any one or more instalments the subscriptions payable for all the instalments would be payable in a lump with interest on the whole amount from the date of default. The kuri was commenced in Vrischikam 1099 and terminated in 1115. The 10th of every month was the kuri day. Default was committed in the payment of subscriptions on 10.9.1106. In Makarom 1108 the Yogam sent a notice, Ext. VIII, demanding payment of the entire balance amount with interest. Notwithstanding this notice subscriptions payable for the instalments up to 10.12.1108 amounting to Rs. 79-14-0 were paid to the Yogam on 10.12.1108 itself and received as such by the Yogam. The amount payable for the instalment of Kanni 1109 was paid on 12.1.1108 and that payable in Kanni 1109 was sent by money order on 9.2.1109 and were accepted as such by the Yogam. These payments were entered in the kuri chittas (kMqMvV sMyVV)) Exts. T. and U. The suit was instituted on 10.3.1121 for the instalments due from 10.3.1109 onwards.

(2.) Defendant No. 13 contended inter alia that the suit was barred under Art.121 of the Cochin Limitation Act, Act XII of 1112. Art.121 reads:

(3.) Learned counsel for the appellant argued before us that it was Act XII of 1112 which was in force when the suit was instituted that should apply to the case and not Act II of 1079 which was repealed by that Act. He further contended that under Art.121 of Act XII of 1112 there must be a waiver in writing in order to save from the bar of limitation a suit for the instalment amounts that fell due within 12 years from the date of the suit. According to learned counsel the fact that instalment amounts were received as such by the Yogam after the issue of the notice Ext. VIII and the fact that such receipt is evidenced by writing would not amount to a waiver in writing as provided in Art.121. His case is that Exts. T and U can at the most only amount to documents evidencing oral waiver by the plaintiff. It was argued that what the Article requires is not a document evidencing oral waiver but an intimation or communication in writing by the creditor to the debtor to the effect that the former has waived his right to claim the whole amount in a lump. Learned counsel for the respondent replied that assuming that Exts. T and U do not amount to a waiver in writing the receipt of the instalment amounts as such by the Yogam after the issue of the notice Ext. VIII operated as a valid waiver under the Limitation Act that was in force at the time and that the right of the Yogam to sue for the instalment amounts as and when they fell due could not be taken away by the subsequent enactment of Art.121 of the Limitation Act, XII of 1112. It was also argued that the receipt of the instalment amounts as such and the entry of the same in the kuri chittas amounted to a waiver in writing as contemplated by Art.121 of Act XII of 1112. It was further argued that by reason of the Cochin Kuri Proclamation the Yogam could not sue for the entire subscriptions in a lump notwithstanding the demand made under Ext. VIII and that, therefore, Art.121 of Act XII of 1112 would not apply to the case.