Darsini v. M/S. Kalinga Chit Funds (P) Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE P.BHAVADASAN** **TUESDAY, THE 25TH MAY 2010 / 4TH JYAISHTA 1932** ## **RSA.No. 490 of 2010** - **----------------------------** **[AS.NO.205/2006 OF PRL.SUB COURT,IRINJALAKUDA, OS.NO.2362/2005 OF ADDL.MUNSIFF'S COURT, IRINJALAKUDA]** **....................** ## **APPELLANTS/APPELLANTS/DEFENDANTS:** **--------------------------------------------------------------** **1. DARSINI, W/O. SREERAMAN, VETTIYADAN HOUSE, VARANDHARAPPILLY VILLAGE AND DESOM, MUKUNDAPURAM TALUK.** **2. SURESH, S/O. THADATHIL GOVINDAN, THADATHIL HOUSE, KODAKARA VILLAGE AND DESOM, MUKUNDAPURAM TALUK.** **BY ADV. SRI.K.S.BHARATHAN.** ## **RESPONDENT/RESPONDENT/PLAINTIFF:** **-----------------------------------------------------------** **M/S. KALINGA CHIT FUNDS (P) LTD., IRINJALAKKUDA DESOM, MATAVALASSERY VILLAGE, REPRESENTED BY ITS CHAIRMAN MR.DAVIS, PULLOKKARAN HOUSE, IRINJALAKKUDA VILLAGE AND DESOM, MUKUNDAPURAM TALUK.** ## **BY** **THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 25/05/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **prv.** ## **P.BHAVADASAN, J.** ------------------------------------RSA No.490 of 2010 ------------------------------------Dated 25th May 2010 ## Judgment The defendants, who suffered a decree for money are the appellants. The parties and exhibits are hereinafter referred to, as they are available before the Trial Court. 2. The first defendant in the suit was a subscriber to a kuri conducted from the Fareedabad branch of the plaintiff Company and he auctioned the kuri on 16.04.1998 and received the amount. The defendants executed a mortgage deed, agreeing to pay the amount of Rs.92,500/- by instalments @ Rs.2,500/- and in case of default, they had to pay 12% interest. The plaint discloses that the defendants defaulted in payment from the 25[th] instalment. Claiming the amounts due to them, the suit was laid. RSA 490/10 2 3. The defendants resisted the suit. The contention taken was that the suit is barred by limitation. They also contended that the plaint was not signed by a person, who had authority to sign it. Another contention taken was that the plaintiff was not a registered company. They also disputed receipt of the amount from the plaintiff company as alleged by the plaintiff. It was also contended that the plaintiff has no right to claim future kuri amount or interest. On the above grounds, the defendants payed for dismissal of the suit. 4. The Trial Court raised necessary issues for consideration. The evidence consists of documents produced as Exs.A1 to A3 from the side of the plaintiff and the testimonies of DW1 from the side of the defendants. 5. On an appreciation of the evidence in the case, the Trial Court negatived all the contentions put RSA 490/10 3 forward by the defendants and decreed the suit. The defendants carried the matter in appeal. The Appellate Court on an independent evaluation of the evidence, concurred with the Trial Court and dismissed the appeal. Hence this Second Appeal. 6. The learned counsel for the appellants relying on the decision reported in _**John v. Oriental Kuries Ltd.**_ (2009(1) KLT 856) contended that the courts below have erred in law in decreeing the suit, claiming future instalments. It was contended that it was not possible to claim future interest in the light of the decision referred to as above. 7. Though the argument may look very attractive at the first blush, it is without any substance whatsoever. Both the courts below have considered this aspect in considerable detail and have come to the conclusion that the defendants have not claimed future instalments. It is interesting to note that in paragraph RSA 490/10 4 8 of the Trial Court judgment, it was observed as follows : _“It was the submission of the learned counsel of the defendants that if notice of the default was served on the defendants they would have cleared all arrears.”_ 8. The appeal memorandum filed before the Appellate Court was made available to this Court. Except for a vague contention, there is nothing to show that the amount due was towards future instalment. In fact, the Appellate Court has considered this aspect and has come to the conclusion that the contention does not appear to be correct. It was also found that the default was made from 16.08.2002 @ Rs.2,500/- per month. The suit was filed on 30.11.2005. The Court below has categorically found that there is no claim for future instalment. The learned counsel for the appellant pointed out that the instalments are payable in April, August and December and viewed from that angle, it could not be said that any amount was RSA 490/10 5 outstanding as arrears and therefore, the claim is for future instalments also. 9. There is no merit in the above contention. Both the courts below considered this aspect and came to the conclusion that it is not so and the suit was for past arrears. Accordingly, no grounds are made out to interfere with the order passed by the court below. The decision relied on by the learned counsel for the appellants has no application to the present case. The learned counsel for the appellants was unable to show that the findings of the court below are perverse on the evidence on record. No substantial question of law arises for consideration in this Appeal. The Second Appeal is devoid of any merits and it is accordingly dismissed. ## **P.BHAVADASAN, JUDGE** sta RSA 490/10 6 # RSA 490/10 7