In this appeal, the appellant challenged the dismissal of a suit for compensation for breach of contract on grounds of limitation. The court held that Article 55 of the Limitation Act applied, causing action to arise upon breach, not resale. The suit filed after the limitation period was dismissed.
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE K.ABRAHAM MATHEW
WEDNESDAY, THE 24TH DAY OF JANUARY 2018 / 4TH MAGHA, 1939
AS.No. 453 of 1999
AGAINST THE JUDGMENT IN OS 207/1992 of SUB COURT,KOTTARAKKARA DATED 22-10-1998
APPELLANT/PLAINTIFF
M/S.REHABILITATION PLANTATIONS LTD, PUNALUR, REPRESENTED BY ITS MANAGING DIRECTOR
BY ADVS.SRI.M.C.JOHN
SRI.JINO JOY PATHADAN
RESPONDENT/DEFENDANT:
T.M.MANZOOR, M/W.MANKASSERY RUBBER TRADING CORPORATION, BUILDING NO.K.P.VII/67, K.E.ROAD, KANJIRAPPALLY
R1 BY ADVS. SRI.PHILIP T.VARGHESE SRI.T.I.ABDUL SALAM
THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 21.2.2018, THE COURT ON 24.1.2018 DELIVERED THE FOLLOWING:
JUDGMENT
NO REPRESENTATION. DISMISSED.
24.1.2018 SD/-K.ABRAHAM MATHEW, JUDGE
/TRUE COPY/
P.S.TO JUDGE
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K.ABRAHAM MATHEW, J.
A.S.No.453 of 1999
Dated this the 21st day of February, 2018
JUDGMENT
The appellant and the respondent were the plaintiff and defendant in O.S.No.207 of 1992 on the file of Subordinate Judge, Kottarakkara. The suit was for compensation of breach of contract. In response to the notice published by the appellant on 25.7.1999 the respondent submitted a tender on 17.8.1989 for purchase of 100 metric tons of rubber trap. The purchase price quoted by him was Rs.6,159/- per metric ton. He deposited Rs.10,000/- as earnest money. The appellant accepted his tender. He was bound to execute a formal agreement within seven days of receipt of communication of the acceptance of offer and take delivery of the goods within 30 days of the receipt of intimation of the acceptance. By the telegram sent on 19.8.1989 and by the letter dated 24.8.1989 the appellant communicated its acceptance of the tender to the respondent. It called upon the latter to execute the agreement within seven days of the receipt of the communication. The communication was received by the respondent on 28.8.1989. He did
A.S.No.453 of 1999 2
not execute the agreement. Nor did he take delivery of the goods. As per the conditions in the tender the appellant was entitled to resell the goods. Accordingly, it was resold on 19.10.1989 after informing the respondent. At the resale the appellant got Rs.5,11,000/-. The loss was Rs.1,04,900/-. It spent Rs.14,015/- to advertise the resale. Thus, the total loss is Rs. 1,18,915/-. The appellant filed the suit claiming this amount and Rs.24,500/- as ground rent. The learned Sub Judge dismissed the suit on the ground that the suit was barred by the law of limitation.
A.S.No.453 of 1999 3
the appellant was the appellant held that in such a situation the Article applies is 55 of the Limitation Act and S.23 of the Act is not applicable. I am bound by it. So the cause of action arose not on the date of resale, but on the date of the breach of contract. Admittedly, the contract was broken on 5.9.1989. The suit should have been filed on or before 6.9.1992. It was filed only on 9.10.1992. It was barred by the law of limitation. The learned Sub Judge rightly held so.
In the result, this appeal is dismissed.
K.ABRAHAM MATHEW JUDGE
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2 issues framed by the court
Whether the suit for breach of contract was barred by the law of limitation.
Which Article of the Limitation Act applies: Article 113 or Article 55.
Colour shows how this judgement treated each authority
AS No.852 of 1998Relied on¶32
M/s.Rehabilitation Plantations Ltd
T.M.Manzoor
K.Abraham Mathew
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
