IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN FRIDAY, THE 4TH FEBRUARY 2011 / 15TH MAGHA 1932 RSA.No. 1363 of 2010() ---------------------- AS.168/2007 of DISTRICT COURT, PALAKKAD OS.187/2005 of MUNSIFF COURT, ALATHUR .................... APPELLANT/APPELLANT/PLAINTIFF ------------------------------------------------- NARAYANASWAMY K.V., S/O.P.A.ANANTHALAKSHMI AMMAL, PAZHAMBALAKKODE VILLAGE (GRAMAM), PAZHAMBALAKKODE P.O., ALATHUR TALUK, PALAKKAD DISTRICT. BY ADV. SRI.SAJAN VARGHEESE K. SRI.LIJU. M.P RESPONDENT(S): RESPONDENT/DEFENDANT ---------------------------------------------------------------- C.R.VENKITACHALAM, S/O.LATE RAMACHANDRA IYER, PERUMKULAM, KATTUSSERRY AMSOM & DESOM, ALATHUR P.O., ALATHUR TALUK, PALAKKAD DISTRICT. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 04/02/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: S.S.SATHEESACHANDRAN, J -------------------------------------- R.S.A No.1363 OF 2010 -------------------------------- Dated this the 4th day of February 2011 JUDGMENT Plaintiff is the appellant. Suit was one for recovery of money. Both courts nonsuited the plaintiff on merits and also on the question of limitation that the suit claim is barred. Feeling aggrieved, the plaintiff has preferred this Second Appeal. 2. The gist of the plaintiff's case for recovery of the suit claim against the defendant can be summed up thus. Both the plaintiff and defendant, employed under a common employer, namely Postal Department, were proceeded against for alleged misappropriation of funds. Pending such proceedings plaintiff deposited the amount, which was stated to have been misappropriated. Though the plaintiff had not been fully absolved of the blame in the departmental inquiry conducted, alleging that the defendant was culpable for the misappropriation and he alone was liable to the department, the suit was laid for recovery of the amount which had been deposited by the plaintiff from the defendant. Admittedly, the deposits were made by way of several payments during the period of 1998 – 1999. Suit was instituted much after the completion of the departmental proceedings and R.S.A No.1363 OF 2010 - 2 - retirement of the plaintiff on superannuation, in 2005. Suit claim was resisted by the defendant contending that there was no privity of contract between the parties in respect of the amount deposited by the plaintiff and further that he was not liable for the amount alleged to have been misappropriated. He also resisted the suit contending it was barred by limitation. On the materials placed, as already indicated, on merits as well as also on the question of limitation, both the courts found that the plaintiff is not entitled to the decree canvassed for and he was nonsuited. 3. On the question of limitation, the learned counsel for the appellant contended that the cause of action for instituting the suit arose only after culmination of the departmental proceedings, which according to him was completed only in 2003. The claim raised under the suit as against the defendant, according to the learned counsel for the appellant, is governed by Article 113 of the Limitation Act 1963. After going through the judgments, I find, even the question whether the residuary article on which the suit claim was sought to be rested to impeach correctness of the decision rendered by the courts below is uncalled for in the case where it is noticed that he had instituted two suits earlier in respect of the suit claim, one in 1998 and the other in 1999, and R.S.A No.1363 OF 2010 - 3 - both such suits were later withdrawn to file a suit on the same cause of action. Withdrawal of the previous suits with permission to file fresh suit would not enable him to get over the period of limitation, and so much so, the exclusion canvassed for, from the period of limitation applicable, which, on the facts presented in the case with respect to the amount deposited in 1998 – 1999, was clearly unsustainable. Further more, the plaintiff had no privity of contract with the defendant in respect of the amount deposited by him to the employer towards the fund misappropriated. When such be the position, his suit claim on merits as well was not entertainable over and above that it was clearly barred by limitation. There is no merit in the appeal, and it is dismissed. Sd/- S.S.SATHEESACHANDRAN JUDGE //True Copy// P.A to Judge vdv