Periaswami vs V.P. Arunachalam

Pratap Singh, J.—This civil revision petition is directed against the judgment in A.S. No. 8 of 1984 on the file of Subordinate Judge, Karur,

in which the learned Subordinate Judge had allowed the appeal, reversing the judgment passed in O.S. No. 2443 of 1979 on the file of District

Munsif, Karur.

Short facts are: The revision petitioner had filed the suit for a sum of Rs. 2,000 and interest thereon due on a pronote. His case is briefly as

follows: The defendant had received Rs. 4,000 and executed a pronote on 4.7.1974 in favour of the plaintiff, agreeing to pay interest at 12% p.a.

He had not paid any amount. So the plaintiff filed suit O.S. No. 995 of 1978 for half of the principal amount and interest, inasmuch as Tamil Nadu

Act 40 of 1978 was then in force. In that suit, the plaintiff got a decree as prayed for. Later, Act 40 of 1978 was repealed by Tamil Nadu Act 40

of 1979. Thus, the plaintiff has become entitled to the remaining part of principal amount and half of interest thereon and hence the suit has been

laid. This claim was resisted by the defendant on the following grounds: It is true that plaintiff filed a suit for half of the principal amount and half of

the interest in O.S. No. 995 of 1978 and had obtained a decree. The defendant had received only Rs. 2,000 under the said pronote and there was

failure of consideration for the remaining amount. He is a small agriculturist, entitled to benefits of Tamil Nadu Act 31 of 1976. Hence he had

prayed for dismissal of the suit. After trial, the learned District Munsif, Karur, had rejected the objections taken by the defendant and had decreed

the suit. Aggrieved by the same, the defendant took up the matter in appeal in A.S. No. 8 of 1984 on the file of Subordinate Judge, Karur. After

hearing both sides, the learned Subordinate Judge had confirmed the findings of the trial court with regard to the defence of partial failure of

consideration and entitlement under Act 31 of 1976, but had held that the suit was not maintainable and on that ground allowed the appeal.

Aggrieved by the same, the plaintiff has come forward with this revision petition.

I have heard Mr. E. Padmanabhan, the learned Counsel appearing for the respondent.

Regarding partial failure of consideration and entitlement of the defendant to benefits of Tamil Nadu Debt Relief Act 31 of 1976, the findings of

the fact at the Court below are concurrent against the defendant. Regarding the maintainability of the suit, the fact remains that the plaintiff had filed

the suit only for half of the principal and interest amount in O.S. No. 995 of 1978 and had obtained a decree, since because, as per the provisions

of Tamil Nadu Act 40 of 1978, he can claim only that much. Later, that Act was repealed and Tamil Nadu Act 40 of 1979 came into force, which

enables such creditors C.R.P. No. 1518 of 1988 to make a claim for the remaining half of the principal amount and interest amount. While so, the

present suit filed by the plaintiff is maintainable. This very question came up for consideration before a Division Bench of this Court in Vythilingam

Chettiar Vs. Rangaswami Padayachi, in which the Bench of this Court had held that such a suit filed for the remaining half of the principal and

interest amount is maintainable, in view of the provisions of Tamil Nadu Debt Relief Act 40 of 1979. That ruling squarely applies to this case.

Consequently, the finding of the lower appellate court that the suit was not maintainable has to be set aside.

In view of the above, the civil revision petition is allowed, setting aside the judgment and decree passed in A.S. No. 8 of 1984 on the file of

Subordinate Judge, Karur and consequently the judgment of the trial court in O.S. No. 2443 of 1979 is hereby restored viz., that the suit is

decreed with costs. Parties are directed to bear their respective costs in this C.R.P.