IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE THURSDAY, THE 29TH JANUARY 2009 / 9TH MAGHA 1930 AS.No. 103 of 1995() -------------------- OS.128/1991 of PRL.SUB COURT,THRISSUR .................... APPELLANT(S): DEFENDANT -------------- V.I.SUBRAMANIAN S/O ITTY, VALIPARAMBIL HOUSE KARAYAMUTTAM, THRISSUR DISTRICT BY ADV. SRI.P.V.CHANDRAMOHAN RESPONDENT(S): PLAINTIFF & LEGAL HEIRS OF PLAINTIFF --------------- 1. KAIPULLY RAMADAS S/O KRISHNAN, KAIPULLY HOUSE THIRUVAMBADY, THRISSUR (DIED) 2. PRASANNA W/O LATE RAMADAS KAIPULLY HOUSE, THIRUVAMBADY THRISSUR - 1 3. GAYATHRI D/O LATE RAMADAS KAIPULLY HOUSE, THIRUVAMBADY THRISSUR -1 4. GEETHA D/O LATE RAMADAS KAIPULLY HOUSE, THIRUVAMBADY THRISSUR -1 ADV. SRI.V.CHITAMBARESH (SR.) FOR R2TOR4 SRI.T.C.SURESH MENON FOR R2TOR4 THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 29/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON C.M.P.NO.873/95 IN A.S.NO.103/1995 DISMISSED 29-01-2009 Sd/-, PIUS.C.KURIAKOSE, JUDGE /True Copy/ PIUS.C.KURIAKOSE, J. - - - - - - - - - - - - - - - - - - - - - A.S.No.103 OF 1995 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 29th day of January, 2009 JUDGMENT The learned Subordinate Judge's findings on the question of limitation are erroneous. The plaint claim is admittedly made up of amounts allegedly due to the plaintiff as balance payable to him under Ext.P1 agreement. The total price of the bus in question was fixed as rupees three lakhs and a sum of Rs. 1,50,000/- was paid to the plaintiff readily. As regards the balance, the agreement was that, from out of the balance, the amount due to the hire purchase company with interest will be paid in instalments over a period of 18 months. The further agreement was that the balance i.e. the balance which remains after the instalments due to the company are paid off within a period of four months. Now according to the learned Judge, there is obscurity in Ext.P1 as to the period during which the balance amount should be paid off. According to the learned Judge when the terms of the agreement are obscure, the evidence adduced by the parties should be looked into. The learned Judge has relied on the statement made by the AS.103/95 2 defendant in his oral evidence that the balance amount will become payable to the plaintiff only after the time stipulated for payment of the balance to the higher purchase company is over. 2. The argument of Sri.P.V.Chandramohan was that there is no obscurity in Ext.P1 about the time when the amount due to the plaintiff ( not to the hire purchase company) is to be paid. He highlighted before me Ext.A1 reply notice which was sent by the plaintiff to Ext.B2 lawyer notice. He submitted that Ext.A1 is issued by the plaintiff himself under his own handwriting. 3. I find merit in Sri.Chandramohan's submission that Ext.A1 contains clear admission to the effect that the balance amount payable to the plaintiff under Ext.B1 is to be paid within four months of Ext.B1. When Ext.B1 is there, it was not necessary for the learned subordinate Judge to have relied on the two sentences in the testimony of DW1 to come to a conclusion that the plaint claim is not barred by limitation. Going by the averments in the plaint 17/9/1988 is the date fixed for payment of the amounts due to the plaintiff. But then Ext.A1 is produced along with the plaint as document No.2. Being a document AS.103/95 3 produced along with the plaint the same is to be construed as part of the plaint. Even if it is admitted for the sake of argument that Ext.B1 gives room for some confusion as to the date stipulated for payment of plaint claim, then such confusion is completely effaced by Ext.A1 reply sent by the plaintiff himself under his own hand writing. I therefore hold that the findings of the learned Subordinate Judge on the issue regarding limitation is erroneous. I set aside those findings and hold that the suit is barred by limitation and is liable to be rejected on the ground of limitation. The appeal will stand allowed. The suit is rejected as barred by limitation. In the circumstances, parties are directed to bear their costs throughout. PIUS.C.KURIAKOSE JUDGE sv. AS.103/95 4