IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 26TH MARCH 2009 / 5TH CHAITHRA 1931 AS.No. 495 of 1995() -------------------- OS.783/1990 of PRL.SUB COURT,KOTTAYAM .................... APPELLANT/PLAINTIFF: -------------- JOHN PAUL, RESIDING AT ATTUKUZHIYIL VEETTIL, KOTHALA KARA, KOOROPPADA VILLAGE, KOTTAYAM TALUK. BY ADV. MR. K.GOPALAKRISHNA KURUP RESPONDENT/DEFENDANT: --------------- M.K. GOPALAKRISHNAN NAIR, R/AT THEKKECHETTAYIL HOUSE, PADINJATTUBHAGOM KARA, CHIRAKKADAVU VILLAGE, KANJIRAPPALLY TALUK. THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 26/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: A.S.495/95 ORDER ON C.M.P.3879 OF 1995 IN A.S.495 OF 1995 DISMISSED. SD/- M. SASIDHARAN NAMBIAR, JUDGE 26.3.2009 OKB - TRUE COPY - P.A. TO JUDGE M. SASIDHARAN NAMBIAR, J. ------------------------------------------------- A.S. No. 495 OF 1995 -------------------------------------------------- Dated this the 26th day of March, 2009 J U D G M E N T Plaintiff in O.S.783 of 1990 on the file of Sub Court, Kottayam is the appellant. Defendant is the respondent. Petrol jeep KRF-9184 belonging to the appellant was exchanged with diesel jeep KL-I/3020 belonging to the respondent under Ext.A1. Rs.25,000/- was then outstanding being the balance hire charges payable for the diesel jeep. Under Ext.A1 it is provided that in addition to the exchange of vehicles, appellant has to pay Rs.8,000/- to the respondent in addition to the hire purchase instalment. Ext.A1 shows that after receiving Rs.1,000 towards that amount, appellant had agreed to pay Rs.7000/- by 25.6.1986. Subsequently when the fourth hire purchase instalment was defaulted, the hirer seized the vehicle. The appellant instituted the suit for realisation of Rs.60,000/- being the damages contending that as the diesel jeep exchanged under Ext.A1 was seized by Suresh Finance Corporation, he sustained damages. Appellant contended that failure to pay the hire A.S.495/95-D 2 purchase instalment which caused the seizure of the vehicle was due to the failure of respondent to hand over the registration book and other records and therefore he is entitled to get the damages being the loss sustained by him. Respondent filed a written statement contending that there was no default on his side and appellant is not entitled to claim the damages and the fault was on the part of the appellant himself. As the appellant did not pay Rs.7,000/- as provided under Ext.A1, a counter claim was raised for realisation of the said Rs.7,000/- with interest. 2. Learned Sub judge on the evidence of PW1, DW1 and Exts.A1 and A2 found that appellant is not entitled to the damages sought for. Suit was therefore dismissed. But it was found that under Ext.A1 agreement appellant has to pay Rs.7,000/- to the respondent and as it was not paid, respondent is entitled to the decree sought for in the counter claim. The counter claim was decreed. The appeal is filed challenging the decree granted in the counter claim. Appellant has not challenged the dismissal of his suit. 3. Though respondent originally appeared through a counsel, after the demise of that lawyer, no fresh vakalath was A.S.495/95-D 3 filed and there was no representation also. Respondent was called and found absent. 4. Learned counsel appearing for the appellant was heard. The only point argued by the learned counsel is that the counter claim was barred by time and it was not taken note of by the learned Sub Judge and therefore the decree granted in the counter claim is to be set aside. 5. It is under Ext.A1 the diesel jeep belonging to the respondent and the petrol jeep belonging to the appellant were exchanged. Under Ext.A1 in addition to the payment of the balance hire purchase instalments, appellant has to pay Rs.8,000/- to the respondent. Ext.A1 shows that deducting Rs.1,001/- which was the advance amount received by the respondent, appellant has to pay the balance of Rs.7,000/-. 6. The date fixed for payment of that amount in Ext.A1 is 25.6.1986. As rightly pointed out by the learned counsel appearing for appellant, the period of limitation would start to run from 25.6.1986. The suit was instituted on 24.10.1987 as an indigent O.P. After allowing the indigent O.P., suit was registered only in 1990. Written statement along with counter A.S.495/95-D 4 claim was filed only on 12.9.1991. Therefore on 12.9.1991 the claim for realisation of Rs.7,000/- due under Ext.A1 is barred. Unfortunately this aspect was omitted to be taken note of by the learned Sub Judge. As the claim is barred, respondent is not entitled to the decree granted in the counter claim. Appeal is allowed. The judgment in the counter claim is set aside. As the counter claim is barred it is dismissed. No costs. M. SASIDHARAN NAMBIAR, JUDGE okb