M THIRUMALACHARIAR Vs. S P VARADAPPA CHETTIAR

JUDGEMENT

(1.) THIS is a defendant's second appeal arising out of a suit for recovery of a sum of Rs. 600 alleged to be due form him to the commercial Funds Ltd. Kancheepuram. The defendant was a subscriber to a chit conducted by the funds. He took in auction a chit for Rs. 5000 payable in 100 monthly installments of rs. 50 each. The first instalment was due on March 14, 1947, and the last was payable on May 14, 1951. Admittedly, the defendant paid all the installments due upto September 14, 1949, but he failed to due pay the subsequent installments. The funds were directed by this court in O. P. No. 309 of 1949 to be wound up. The official Receiver who was appointed as the Officials liquidator for realising the outstandings of the funds sold the outstanding, due to funds, to the plaintiff, the respondent in the present second appeal by means of a sale deed dated May 17, 1954. The plaintiff, a s such assignee, claimed to be entitled to realise the amount chimed in the suit. According to him although he was entitled to a larger amount, he confined his claim to the sum of Rs, 600 being the installment payable for the period from December 14, 1950 to May 14, 1951. The suit was actually instituted on July, 1955, The plaintiff pleaded that the suit was in time by virtue of Madras ordinance V of 1953 and Madras Act V of 1954 and I of 1955.

(2.) THE main defence to the suit was on of limitation. The contention on behalf of the defendant was that the sit was governed by Art. 75 of the First Schedule to the Limitation Act. This defence found favour with the trial court, with the result that the suit was dismissed. The argument on behalf of the defendant in this court trial court found that under rule 6 of the Fund's bye-laws the consequence of default in payment of any of the installments was that the entire debt would become due from the date of the default; and that no waiver of the benefit of this rule having been established by the plaintiff, t he suit would be out of time under art. 75. A further argument was advanced before threat trial court that the suit would be within time by reason of an admission of liability on the part of the defendant in an earlier written statement filed by him in O. S. No. 186 of 1952 on the file of the District Muncie of Conjeevaram. That was a suit in which one swaminatha Mudaliar, claiming to be an assignee of the debt, sought to recover the sought to reviver the sum form the present defendant; an in defence the defendant's plea was, inter alia. That the assignment itself was void and that he was, therefore, not liable for the debt. There was an alternative plea in the written statement that if the assignment were to be held to be good and valid his liability would extend to sum of Rs. 600 and not to any larger sum. Actually this written statement was not filed at the trail court, but a reference to the alleged admission was found in the judgment, Ex. B-3, in that suit. There was also a reference to the alleged admission in Ex. A-5 another written statement, said to have been filed by the defendant before the Official receiver. Chingleput. The trial court on a consideration of Ex. B-3 and A-5, was of the view that the acknowledgment pleaded by the plaintiff to save the bar of limitation was not established.

(3.) ON appeal by the plaintiff, the lower appellate court took a different view on the question of limitation. In effect, it considered that waiver on the part of the plaintiff would, in such circumstances be presumed, and that the suit would, therefore be in time under Art. 75 of the Limitation Act. In support of this view, the lower appellate court relied on the decision of Mack J. In Ayyathurai Mudaliar v. Ibramsa Rowther, AIR 1949 Mad 592: 1949-1 Mad LJ 112 allowed the appeal and decreed the suit. The aggrieved defendant has therefore, come up to this court in second appeal.