KRISHNA PILLAI Vs. PADMANABHAN

JUDGEMENT

(1.) HIS appeal arose out of a suit for recovery of Chitty subscriptions from a defaulting prized subscriber. The Chitty scheme was started by the deceased father of the plaintiffs and 2nd defendant and the 1st defendant had taken a ticket therein. He prized the ticket at the 5th instalment and received the prize amount on executing Ext. A hypothecation bond securing the due payment of future subscriptions and further providing that if default occurred as regards any one instalment, all future instalments together will fall due. The 1st defendant however defaulted in his undertaking from the 14th instalment onwards. Demand was thereafter made of him, in writing, for payment of all future subscriptions in lump and as he still failed to pay, this suit was laid within 12 years of the demand for realisation of all the instalments with interest and charged on the property secured under Ext. A.

(2.) THE 1st defendant contested the suit on various grounds. We are concerned only with three matters first, the payment of the subscription for the 14th instalment in due course, second, bar of limitation as regards the subscriptions for the 14th to 18th instalments and third, a counter-claim on account of assignments in his favour of the claims of certain non-prized subscribers to paid-up subscriptions. THE court below found against the 1st defendant on all these matters and hence his appeal herein.

(3.) SR. M. N. Parameswaran Pillai, learned counsel for the appellant says that the individual causes of action for the instalments which respectively fell due more than 12 years before the suit must regulate the commencement of the limitation as regards each such instalment and Art. 120 should not be interpreted so as to depart from this "fundamental concept" and he relied upon Ouseph George v. Mathu Poulo,1949 T-C. L. R. 125 in support of his proposition. Certain observations in that decision do support learned counsel but it seems to us that the point did not actually arise for decision in that case nor was the question considered from the point of view of the wording of the Art. 120. In that case certain instalments which had fallen due before the period of 12 years of the suit had been held to be barred by the trial court and the lower appellate court concurrently and the plaintiff had been content to accept such decision and the only question which was canvassed in the High Court in Second Appeal was a question of fact viz. , whether the suit was brought more than 12 years after the demand and whether on that account the suit was not barred by limitation. It was only incidentally that the learned judges said 'that the instalments that became due more than 12 years before the suit were clearly barred". In our judgment, the Article as worded is too clear to admit of any doubt. There is only one obligation left after the first default, i. e. , the obligation to pay off the future instalments in lump as a result of the issue of a demand in writing before the last instalment fell due. The contention as to limitation has no substance and is overruled.