MADHAVAN T S Vs. MUNDADAN CHITTIES

JUDGEMENT

(1.) The Second Appeal is directed against the judgment and decree in AS 75/2007 on the file of the District Court, North Paravur which arises from the judgment and decree in OS No. 152 of 2005 on the file of Munsiff's Court, Aluva. The suit was filed for realisation of money due to the plaintiffchitty company from the defendant who is a chitty subscriber. The Trial Court repelled the contentions of the defendant and held that the plaintiff firm is entitled to recover the plaint amount from the defendant. Accordingly a decree for realisation of Rs.51,823.50 was passed together with interest at 18% per annum. The said decree and judgment was confirmed by the lower Appellate Courts. The appellant herein is the defendant in the suit. The parties hereinafter referred to as plaintiff firm and defendant as arrayed in the suit.

(2.) The defendant / appellant challenged the Trial Court's judgment and decree before the lower Appellate Court. The lower Appellate Court elaborately considered the only question 'whether the suit is barred by limitation or not ' and decided the appeal in favour of the plaintiff firm. All other questions were also decided on the basis of facts evidence and circumstances and the learned District Judge agreed with the Trial Court's findings. It is not disputed that the defendant has committed default in payment of the chitty subscription from the 20th instalment and the amount sought to be recovered from the defendant is the balance amount to be paid in the chitty transaction conducted by the plaintiff firm. The lower Appellate Court found that the chitty terminated on 15/05/2002 and the suit is filed on 30/03/2005 and the filing of the suit is within three years from the date of termination of the chitty period. Following the principles laid down in the decision in C. Dhanam v. A. M. Sreenivasan and Others, 2006 KHC 1648 : AIR 2006 Madras 21 : 2006 (3) KLT SN 44., the lower Appellate Court held that the starting point of limitation would be the date of termination of the chitty period and not date of default. It is also held that the cause of action for the suit as mentioned in the plaint is the conclusion of the chitty period and the subscription is payable as on the said date.

(3.) The learned counsel for the defendant / appellant after referring to certain decisions of this Court, contended that the starting point of limitation would be the date of default and not the date of termination of the chitty period. According to him the Courts below ought to have seen that the suit is barred by limitation since even according to the plaintiff firm the defendant had committed default from 15th November, 2000. He also contended that the plaintiff firm has no cause of action against the defendant for filing the suit since there was no demand from the side of the plaintiff firm.