Kerala High Court
M/S.Verigem Bankers vs U.K.Raghavan on 2 December, 2022
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SATHISH NINAN
FRIDAY, THE 2ND DAY OF DECEMBER 2022 / 11TH AGRAHAYANA, 1944
RSA NO. 397 OF 2003
AGAINST THE JUDGMENT AND DECREE IN AS 238/1999 OF 1ST
ADDITIONAL DISTRICT COURT, KOZHIKODE
AGAINST THE JUDGMENT AND DECREE IN OS 15/1997 OF SUB COURT,
QUILANDY
APPELLANTS/RESPONDENTS/DEFENDANTS:
1 M/S.VERIGEM BANKERS,P.O.CHEMANCHERY, REPRESENTED
BY ITS PROPRIETOR N.BALAN, S/O.KUNHISANKARAN,
RESIDING AT PRATHEEKSHA, THEKKUVEETTIL LANE,
KACHERI AMSOM, KURUMBRAKKATTASSERY DESOM OF
KOZHIKODE TALUK.
2 SRI.N.BALAN,S/O.KUNHISANKARAN, RESIDING AT - DO -
BY ADVS.
SRI.T.SETHUMADHAVAN
SRI.K.JAYESH MOHANKUMAR
SRI.PUSHPARAJAN KODOTH
RESPONDENT/APPELLANT/PLAINTIFF:
U.K.RAGHAVAN,TEACHER, S/O.ACHUTHAN NAIR, RESIDING
AT 'PRASAD' HOUSE, THIRUVANGOOR AMSOM AND DESOM,
KOYILANDY TALUK, KOZHIKODE.
BY ADVS.
SMT.S.LAKSHMY
SRI.R.PARTHASARATHY
THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON
02.12.2022, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
Sathish Ninan, J.
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R.S.A No.397 of 2003
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Dated this the 2nd day of December, 2022
JUDGMENT
The defendant in a suit for money is the appellant.
The suit, though dismissed by the trial court, was
decreed in appeal.
2. On 19.06.1989, the plaintiff deposited an amount
of D50,000/- with 1st defendant Bank, of which the 2 nd
defendant is the proprietor. The amount was payable to
the plaintiff with interest at the rate of 20% per
annum. Towards security, the 2 nd defendant executed a
Promissory Note (Ext A1). The 2 nd defendant filed an
Insolvency Petition seeking to declare him as insolvent.
The Insolvency Petition was subsequently dismissed for
default on 16.09.1996. The suit is filed for recovery of
the amount with interest.
3. The plea of the defendants is essentially of
limitation.
R.S.A No.397 of 2003
4. The trial court held that the plaintiff is not
entitled for exclusion of the period during which the
insolvency proceeding was pending, and that the suit
filed in 1997 based on a transaction of the year 1989 is
barred by limitation. The first appellate court held
that the amount in question is one in the nature of a
deposit by the plaintiff with defendant Bank and that,
under Article 22 of the Limitation Act, limitation
commence only from the date of demand. Thus, the suit
was held to be within time.
5. Heard the learned counsel Sri.K.Jayesh Mohan
Kumar on behalf of the appellant and Sri.R.Parthasarathy
on behalf of the respondents on the following
substantial question of law:
"Is the finding of the first appellate court that the plaint
claim is not barred by limitation, correct in law?"
6. That, the 2nd defendant was conducting banking
business, and that being unable to pay the debts he had
filed Insolvency Petition before the Insolvency Court,
R.S.A No.397 of 2003
is not disputed. The fact that the plaintiff was shown
as a depositor with the Bank is evidenced by Ext A6, the
attested copy of the Insolvency Petition filed by the
defendant. In Ext A6, at paragraph 3, it has been stated
that amounts were being received as deposits for
repayment with interest. The fact that the plaintiff
herein was shown in the insolvency proceedings as a
depositor with the Bank, is not disputed. The amount
being one in the nature of a deposit, limitation starts
from the date of demand. This is in terms of Article 22
of the Limitation Act (See Sarada Amma v. Kerala Varma
Kochanujan Thampuran 1983 KLT 248, Elampalloor Devaswom
Trust v. Kamalakshy Ammal & Another 1989 (1) KLT 484).
Therefore, the suit is filed within the time of
limitation.
7. That apart, the fact remains that the defendants
have acknowledged the liability in favour of the
plaintiff in the pleadings filed in insolvency
proceeding.
R.S.A No.397 of 2003
8. Thus, the first appellate court was right in
having held that the suit was filed within time.
Substantial question of law is answered accordingly.
Resultantly, the Regular Second Appeal fails and is
dismissed.
Sd/-
Sathish Ninan, Judge
vdv
