Ibrahimkutty Mather vs Kesava Kamath and Others

Velu Pillai, J.—The question arising for decision in this second appeal by the second plaintiff, in a suit by him and by the Official Liquidator of the Cochin Mercantiles Ltd., for the realisation of defaulted subscriptions for instalments 22 to 40 in respect of a prized ticket, which accrued within three years of the date of the suit, is whether the suit is barred by limitation or not. The suit was based on the provisions of the security bond Ext. P. 1 which provided, that on default of payment of subscriptions for any one instalment, the foreman might realise the future subscriptions in lump, or the defaulted subscriptions as and when they fell due. The courts below considering this to be an instalment bond, have held against the plaintiffs, and hence this second appeal. The suit arose in Fort Cochin area in which there was no enactment regulating the conduct of kuries. On the terms of Ext. P. 1, the foreman had two rights in the event of default of the prized subscriber in paying the future subscriptions, one, to enforce payment of future subscriptions in lump and the other to recover the defaulted subscriptions as they fell due; any one of these rights may be enforced at his option. In the present case, the foreman had not lost its rights and its successors-in-interest have by this suit chosen to enforce the latter right, which they are competent to do. In the case of such bonds, this court has consistently taken the view in a series of cases, that the foreman is entitled to realise the subscriptions which accrued due within the period of three years before the institution of the suit, in spite of the clause providing for payment in lump. One of these cases if C. R. P. 661 of 1959, decided by a Division Bench, on a similar bond and I am bound by the decision. In S.A. No. 841 of 1959 one learned Judge, and in S.A. 301 of 1960 another learned Judge, of this Court, have taken the same view. In C. R. P. 315 of 1959 and S.A. 1292 of 1959, I have also held similarly, in the former following the decision of Mr. Justice P. T. Raman Nayar in The Cochin Commercial Bank Ltd. v Narayana Kamath (1959 K. L. R. 1686). On the above view, the suit is not barred by limitation. In reversal of the decrees of the lower courts, the second plaintiff is granted a decree for the realisation of the sum of Rs. 2,495.75, with future interest at 5% per annum from the defendants with costs in this Court, from them. The costs in the courts below shaft be borne by the parties, in view of the contentions they have raised.