IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE THURSDAY, THE 27TH NOVEMBER 2008 / 6TH AGRAHAYANA 1930 AS.No. 772 of 1998() -------------------- OS.129/1996 of II ADDL.SUB COURT,ERNAKULAM .................... APPELLANT(S)/PLAINTIFF: ----------------------------------- M/S. VIDEOCON INTERNATIONAL LTD., RAVIPURAM JUNCTION, M.G.ROAD, COCHIN – 15 REPRESENTED BY THE POWER OF ATTORNEY HOLDER MR. R.C. PILLAI, ACCOUNTS OFFICER VIDEOCON INTERNATIONAL LTD. COCHIN 15. BY ADV. SRI.P.K.SURESH KUMAR SRI.K.JAGADEESCHANDRAN NAIR SRI.J.KRISHNAKUMAR RESPONDENT(S)/DEFENDANTS: -------------------------------------------- 1. M/S. INDIA MACHINE AGENCIES, MYSORE ROAD, MANATHAVADY, KERALA. 2. MR. P.P. RAJAN, PROPRIETOR, INDIA MACHINE AGENCIES, MYSORE ROAD, MANANTHAVADY, KERALA. ADV. SRI.JOHN JOSEPH VETTIKAD THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 27/11/2008, ALONG WITH AS NO. 257 OF 1999 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PIUS.C.KURIAKOSE,J. ------------------------ A.S.Nos.772/1998 & 257/1999 ------------------------ Dated this the 27th day of November, 2008 JUDGMENT The counsel for the appellant in these cases is absent today also. Suits filed by the appellant plaintiff were dismissed by the learned Subordinate Judge on the ground of limitation. Likewise counter claims raised by the respondents were also dismissed on the ground of limitation. The ground prominently raised in both these appeals is that the learned Subordinate Judge went wrong in not applying the correct Article of the Limitation Act for determining the question of limitation. According to the appellant, it is Article 1 of the Limitation Act which should apply to these cases. Article 1 of the Limitation Act deals with suits “ for the balance due on mutual, upon and current account where there have been reciprocal demands between the parties.” It was noticed by the learned Subordinate Judge that there was no case for the plaintiff or for that matter for the defendant also that the account between the parties was mutual, open and current and that there have been reciprocal demands between A.S..No.257/99 & antoher 2 them. 2. Having examined the pleadings including the written statement containing the counter claim, I am also convinced that neither of the parties had a case that the account between them was mutual, open and current. The view taken by the learned Subordinate Judge has the support of the judgment of the Calcutta High Court in Tea Financing Syndicate Ltd. v. Chandra Kamal Bez Barua ( AIR 1931 Calcutta 359). I also find that the view is supported by the judgment of the Supreme Court in Kesharichand Jaisukhalal v. Shilong Banking Corporation Ltd. ( AIR 1965 SC 1711) and judgment of a 5 Judge Bench of that court in Hindustan Forest Company v. Lal Chand and others ( AIR 1959 Supreme Court 1349). Under the above circumstances, even on merits the appeals are liable to be dismissed, however, in the absence of the counsel for the appellant, I am dismissing these appeals only for default. Appeals are dismissed. No costs. (PIUS.C.KURIAKOSE,JUDGE) dpk A.S..No.257/99 & antoher 3 PIUS.C.KURIAKOSE,J. ----------------------- A.S.Nos.772/1998 & 257/1999 ---------------------- JUDGMENT 27TH NOVEMBER 2008