IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN SATURDAY, THE 3RD DECEMBER 2011 / 12TH AGRAHAYANA 1933 AS.No. 790 of 1995(C) -------------------------------- OS.NO.106/1988 of SUB COURT,KOTTARAKKARA .................... APPELLANT(S)/PLAINTIFF --------------------------------------- M/S.REHABILITATION PLANTATIONS LTD(GOVERNMENT COMPANY) PUNALUR. REPRESENTED BY COMPANY SECRETARY. BY ADV. SRI.M.C.JOHN RESPONDENT(S)/ DEFENDANTS ------------------------------------------------ 1. M/S.TRANS WORLD INTERNATIONAL (FIRM) REPRESENTED BY ITS PARTNER GOPALAKRISHNAN HARIHARAN, INDUSTRIALIST, RESIDES AT B-7 HUDCO HOUSING UNIT, KURICHI, COIMBATORE-21. (REPRESENTED BY R3)*. *2. GOPALAKRISHNAN HARIHARAN B-7 HUDCO HOUSING UNIT, KURICHI, COIMBATORE-21.(DIED). 3. GOPALAKRISHNAN MAHADEVAN, RESIDING AT DO DO. 4. K.ANANDANARAYANAN, RESIDING AT HOUSE NO.T.C.23/803, VALIYASALA STREET, THIRUVANANTHAPURAM. *IT IS RECORDED THAT R2 IS NO MORE AND HENCE R3, GOPALAKRISHNAN MAHADEVAN, WHO IS A PARTNER OF THE FIRST RESPONDENT FIRM THE AUTHORISED REPRESENTATIVE OF THE FIRST RESPONDENT FIRM, VIDE ORDER DATED 20/9/07 IN MEMO DATED 13/9/07, C.F.NO.3978/2007. BY ADV. SRI.U.K.RAMAKRISHNAN SRI.P.V.LOHITHAKSHAN THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 03/12/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts P.BHAVADASAN, J. ------------------------------------- AS No.790 of 1995-G ------------------------------------- Dated this the 3rd day of December 2011 Judgment The plaintiff, whose suit was dismissed by the court below is the appellant. 2. The suit was one for damages. The first defendant is a dealer in weighing machines. The plaintiff invited tenders for supply of steel yard type weigh bridge having capacity of 30000 kgs. The first defendant offered to supply Avenue brand weigh bridge and quoted Rs.1,26,480/- for it. That quotation was accepted on 25.06.1983 and the first defendant was asked to make security deposit of Rs.10,000/- and to execute a formal agreement before 30.06.1983. The first defendant did not do so and so the time was extended till 25.10.1983 on the request of the first defendant. The first defendant made the security deposit of Rs.10,000/- on 10.04.1983 and a formal agreement was executed by the fourth defendant on 22.10.1983. It is claimed that the plaintiff received a AS 790/95 2 delivery note sent by the first defendant on 24.10.1983 indicating that the spare parts of the weigh bridge have been despatched through Deepak Transport Agency. On the basis of the lorry receipt sent by the first defendant, the plaintiff paid Rs.34,569/- on 07.01.1984, which represents 60% of the price of spare parts. On 19.01.1984, the first defendant informed the plaintiff that the remaining parts will be sent within thirty days. The first defendant also sent blue print of the plan for the foundation of the weigh bridge manufactured by Aeries Scales Industries Howrah along with the said letter. The plaintiff took delivery of the goods from Deepak Transport Agency on 19.3.1984, incurring an expense of Rs.3,127/-. On 13.3.1984, the first defendant sent a letter along with the blue print of the foundation of the weigh bridge. As it was not the plan for the foundation of Avenue brand weight bridge, the plaintiff requested the first defendant to submit the drawing specifying the brand of the weighing machine to which the first respondent did not respond. Thereafter, the plaintiff issued a notice on AS 790/95 3 14.7.1984, calling upon the first defendant to supply the weigh bridge as per the agreement. But the first defendant did not supply the weigh bridge. While so, the manufacturers of Avenue Branch Weigh Bridge informed the plaintiff that the first defendant was not their agent or dealer and a technician was deputed by them to inspect the spares already sent by the first defendant. The technician inspected the spare parts and reported that they were not the spare parts of a weigh bridge. Thus the first defendant committed breach of contract and therefore, the suit was laid claiming Rs.14,570.88 as compensation for damages, for return of the sum of Rs.34,560/- paid as price of spare parts and also Rs.3,127/- paid towards transportation. 3. Defendants 1 to 3 remained ex parte. The fourth defendant contested the suit. It is pointed out that the plaintiff has no cause of action against the fourth defendant and the suit is barred by limitation. He is not a necessary party to the suit as he had no authority to sign AS 790/95 4 the agreement on behalf of defendants 1 to 3. The fourth defendant went to the extent of contending that the agreement itself is void and cannot be accepted. 4. On the above pleadings, necessary issues were raised. Evidence consists of the testimony of PWs 1 and 2 and documents marked as Exts.A1 to A45 from the side of the plaintiff. The defendants had DW1 examined. No documents were marked from the side of the defendants. 5. The court below, on an evaluation of the evidence, found that the suit is barred by limitation and accordingly dismissed the suit. It is the said judgment that is assailed in this appeal. 6. The learned counsel for the appellant pointed out that the court below was not justified in holding that the suit is barred by limitation. The learned counsel pointed out that the formal agreement was executed on 22.10.1983. The plaintiff received the delivery note and invoice sent by the first defendant on 24.10.1983. The AS 790/95 5 plaintiff paid an amount of Rs.34,569/- on 7.1.1984 and on 19.01.1984, the first defendant informed the plaintiff that the remaining parts will be sent within thirty days. Thereafter, the plaintiff took delivery of goods from Deepak Transport Agency on 19.3.1984. To a notice sent by the plaintiff on 14.7.1984 the first defendant replied that they could not supply the weigh bridge due to some disputes among the partners of the firm. Later, the first defendant by Ext.A33 telegram informed the first plaintiff that they were ready to perform the contract. That was granted. It was thereafter that the plaintiff took steps to lay the suit. It is also contended that apart from the general and vague averment that the suit is barred by limitation, no specific contention whatsoever was taken by the defendants. According to the learned counsel, the suit filed on 5.8.1988 was very much within the period of limitation. These aspects have not been considered by the lower court and that has resulted in a wrong decree being passed. AS 790/95 6 7. There seems to be considerable force in the above contention. Even though the defendant informed the plaintiff that they were unable to supply the materials on 16.07.1984, it may be noticed that the first defendant issued Ext.A33 telegram dated 19.08.1986, expressing their willingness to supply the materials. Accordingly, time was granted to them. It was only thereafter that the suit was filed. If that be so, it could not be said that the suit is barred by limitation. These aspects have not been noticed by the lower court and therefore, it is felt that a reconsideration of the matter is necessary. In the result, this appeal is allowed. The matter is remanded to the trial court for fresh consideration in accordance with law and in the light of what has been stated above. The parties shall appear before the trial court on 23rd January 2012. The trial court may make every endeavour to dispose of the suit as expeditiously as AS 790/95 7 possible, at any rate, within six months from the date of appearance of parties before court. P.Bhavadasan, Judge sta AS 790/95 8