N ARULDHAS Vs. K GOPINATHAN NAIR

JUDGEMENT

(1.) The prized subscriber in a chit transaction is the petitioner herein. The respondent is the Foreman in the chit transaction. The petitioner, after a successful bid, executed two promissory notes on 20-7-1973 and 25-11-1973 respectively by way of security for regular payment of instalments. The chit was for a sum of Rs. 4,000/- consisting of 40 instalments payable at Rs. 100/- per month. The petitioner regularly paid up to 23rd instalment. He committed default from the 24th instalment which fell due on 23-12-1974. It is common ground that the chit terminated on 2-5-1976. The respondent issued a notice on 17-3-1978 calling upon the petitioner to pay the arrears, and finding no response, filed the suit O.S.No. 112 of 1979, on the file of the court of the Additional District Munsif, Padmanabhapuram, for recovery of arrears from the 24th instalment onwards. The suit was resisted inter alia contending that it was barred by limitation. The trial Court, applying the ratio laid down by a Division Bench of the Kerala High Court in Nanoo Sukumaran v. Padmanabhan Sankaran reported in AIR 1978 Kerala 28, decreed the suit only in respect of four instalments which were due just prior to three years from the date of institution of the suit. The suit in respect of the balance amount was dismissed on the ground that it was timebarred. Aggrieved by the judgment of the trial Court, the respondent filed an appeal in A.S. No. 45 of 1980, on the file of Sub Court, Padmanabhapuram. The Appellate Court, purporting to apply the ratio laid down by this court in Lazer v. P. Selvamony reported in 1978 TLNJ page 60, has allowed the appeal and decreed the suit as prayed for. Hence the present Civil Revision petition by the petitioner.

(2.) Miss O. K. Sreedevi, learned counsel appearing for the petitioner, placing reliance on judgments of this court in M. Thirumalachariar v. S.P. Varadappa Chottiar reported in AIR 1962 Madras 210 and Sudarasan Chit Fund, rep. by its President, Branch Manager, Pollachi Branch v. Mrs. Jagadambal reported in 95 Law weekly page 682, submitted that the suit must have been dismissed in entirety as time-barred as was it not filed within three years from 23-12-1974, the date on which the default was committed. According to her, the decreeing of the suit for a sum of Rs. 400/- on the basis of the ruling of the Kerala High Court in AIR 1978 Kerala 28 (supra) itself is not sustainable. She further submitted that the lower appellate court went wrong in assuming that the ratio laid down 1978 TLNJ 60 (supra) applies to the facts of this case.

(3.) Mr. Sreekumaran Nair, learned counsel appearing for the respondent, however, submitted that the ratio laid down in 1978 TLNJ 60 (supra) will apply to the facts of this case, and in any event, in the light of the recent judgment of this court in S. Padpurangan reported in 1987 TLNJ 183, the judgment of the lower appellate court is sustainable.