P J JOSEPH Vs. SUHARA BEEVI HUSSAIN

JUDGEMENT

(1.) This appeal is directed against the judgment and decree passed by the learned Single Judge in A.S. 310/1988 reversing the decree passed by the Sub Judge, Alappuzha, in O.S. 317/1981. The respondent in A.S. 310/1988 is the present appellant.

(2.) The facts of the case are as follows: The plaintiff Suhara Beevi, the owner of 'Textile Traders", Alappuzha, filed O.S. 317/1981 for recovery of the amount due from the defendant towards balance price of textiles sold to the defendant on credit. The plaint was signed by the plaintiffs husband who was holding the power-of-attorney of the plaintiff. It was alleged that the defendant purchased textile goods from the shop of the plaintiff on credit for his business and as on 14.9.1978 an amount of Rs. 15,424.42 was due and on 14.9.1978 the defendant paid Rs. 51/- and acknowledged the liability and even after demand, the defendant failed to pay the amount and hence the suit. The defendant/appellant filed written statement contending that the suit was not maintainable, that the defendant had executed mortgage deed No. 1354/76 mentioning the receipt of Rs. 10,000/-, even though no amount was received, as guarantee or security for the credit purchases from the textile shop of the plaintiff upto an amount of Rs.10,000/- and that the plaintiff has to sue on the basis of the above mortgage for an amount upto Rs.10,000/- and a suit will lie only in respect of the amount in excess of Rs. 10,000/-. The defendant purchased goods for a total amount of Rs. 17,680.35 on different dates and he had already paid an amount of Rs. 7635.07 and the balance was only Rs. 10,045.28, of which Rs. 10,000/- was covered by the mortgage and the balance had been set off towards reduction in price and thus the defendant prayed for the dismissal of the suit.

(3.) As the defendant contended that the husband was not specifically authorised in Ext. A1 power-of-attorney to institute suits, the plaintiff filed I.A. 886/1984 seeking the permission of the Court to sign the plaint. The Trial Court found that notwithstanding the fact that Ext. B1 mortgage deed was executed in favour of the plaintiff's husband, the suit was maintainable. The plea of discharge set up by the defendant also was found against him. But the suit was dismissed on the ground that the plaintiff had not signed the plaint and there was no proper authorisation for the husband of the plaintiff to sign the plaint and that the suit was barred by limitation. LA. 886/84 filed by the plaintiff seeking the leave of the Court to sign the plaint was also dismissed as it was filed after the expiry of the period of limitation.