SUDARSAN CHIT FUND Vs. JAGADAMBAL

JUDGEMENT

(1.) THE plaintiff-Sudarsan Chit Funds is. the petitioner and the petition has been filed against the judgment of the appellate Court (Subordinate Judge, Udumalpet), dated 12th December, 1977, by which the decree and'judgment of the trial Court dated 31st January, 1977, in O. S. No. 19 of 1976, dismissing the suit as barred by limitation, has been confirmed.

(2.) THE plaintiffs filed the suit for recovery of the arrears of chit instalments under the-promissory note executed by the defendants. THE defendants pleaded, inter alia, that the suit is barred by limitation and that the suit cannot be enforced against some of the defendants as they are entitled to the benefits of the Debt Relief Act. Separate issues were framed by the learned District Munsif and issue-No. 3 reads whether the defendants are entitled to any Debt Relief Act benefits and additional issue was framed as to whether the suit is barred by time. On issue No. 3, the learned District Munsif gave a finding that the defendants are not entitled to any benefit under the Debt Relief Act. Only on-additional issue he has given a finding that the suit is barred by limitation. On appeal by the plaintiffs in the Sub-Court at Udumalpet, the learned Subordinate Judge concurred with-the above finding of the District Munsif on the question of limitation and dismissed the appeal with costs. Hence the present revision.

(3.) IN M. Thirumalachariar v. S. P. Varadappa Chettiar3, the identical question arose and Article 75 of the old Limitation Act, which is in pari materia with the present Article 37 of the Limitation Act has been applied. Justice Veeraswamy, as he then was has held, after considering the starting point of limitation as provided in Column 3 to Article 75 (present Article 37), namely, when the default is made, unless where the payee or obligee waives the benefit of the provisions and then when fresh default is made in respect of which there is no such waiver, that the period of limitation commences the moment there is a default made in payment of the instalment due and a suit beyond three years from the date of such default would prima facie be out of time. IN that case, the waiver was presumed by the lower Courts in favour of the plaintiff and while dealing with that aspect, it was held "that the mere fact that waiver will be to the advtantage of the plaintiff inasmuch as that will save him from the bar of limitation, will not ipso facto be a proper basis for the view that he should be assumed to have waived the benefit and that it will have to be pleaded and established, if it is to be relied upon as a ground for the exemption from the bar of limitation provided by Article 75. IN this case there is no plea of evidence of waiver by the plaintiff.