IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 30575 of 2004(M)
1. M/S.HANSALIA AGENCIES, XL-11/1566,
... Petitioner
Vs
1. JOHNY, S/O.SEBASTIAN, KOPPANALIL HOUSE,
... Respondent
2. LUCYKUTTY JOHNY, W/O.JOHNY
For Petitioner :SRI.S.B.PREMACHANDRA PRABHU
For Respondent :SRI.D.ANIL KUMAR
The Hon'ble MR. Justice HARUN-UL-RASHID
Dated :04/03/2009
O R D E R
HARUN-UL-RASHID, J.
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W.P.(C).No.30575 of 2004 - M
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Dated this the 4th day of March, 2009
J U D G M E N T
The plaintiff in O.S.No.592/2000 on the file of the 2nd
Additional Sub Court, Ernakulam is the writ petitioner herein.
The writ petition is filed seeking to set aside Ext.P8 order dated
7.10.2004 passed in I.A.No.4617/2004 in the suit.
2. The plaintiff filed a suit for recovery of Rs. 4 Lakhs and
odd against the first respondent herein who is the sole defendant
in the suit. The suit is for recovery of money being the cost of
goods supplied by the plaintiff to the defendant and towards sales
tax dues. In the plaint which is produced as Ext.P1 herein, the
status of the sole defendant was shown as proprietor of
M/s.Shruthi Industries, Thodupuzha. In Ext.P1 plaint it is also
averred that the sole defendant had issued three cheques in
discharge of his liability but when presented, the cheques were
not honoured as the defendant had instructed stop payment. In
the written statement filed by the sole defendant who is the first
respondent herein it is inter alia contended that goods supplied
by the plaintiff were of inferior quality and resisted claim of the
W.P.(C).No.30575 of 2004 – M
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plaintiff for recovery of the plaint amount. In the written
statement filed by the first respondent/defendant, he has no case
that he is not the proprietor of M/s.Shruthi Industries. Copy of
the written statement is marked as Ext.P2.
3. The 2nd respondent herein is the wife of the first
respondent. During the trial stage, the first defendant filed
I.A.No.5090/2002, marked as Ext.P3, seeking permission of the
court to examine his wife as a witness. The said petition was
allowed by the trial court. For the first time, in the affidavit filed
in support of I.A.No.5090/2002 (Ext.P3) the sole defendant
revealed that the registration of the Unit is in the name of his
wife and that he is not the proprietor of M/s.Shruthi Industries.
Ext.P3 is dated 9.12.2002. Thereupon plaintiff filed
I.A.No.1503//2002 dated 10.1.2003 seeking to implead the wife
of the sole defendant as additional 2nd defendant in the suit. In
the affidavit filed in support of the impleading petition, the
plaintiff narrated the sequences of events right from the filing of
the suit till the filing of Ext.P3 by the sole defendant. The
plaintiff in the affidavit stated that he came to know for the first
time that the sole defendant’s wife is the proprietrix of
M/s.Shruthi Industries. Impleading petition was allowed.
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Subsequently the 2nd defendant filed a written statement marked
as Ext.P5 on 15.9.2003.
4. In paragraph 2 of Ext.P5 written statement the 2nd
defendant contended inter alia that the suit is barred by
limitation, that she is the proprietrix of M/s.Shruthi Industries
and that summons is served on the 2nd defendant on 22.08.2003,
in the impleading application, that the suit against the 2nd
defendant deemed to have been filed only on 22.8.2003 as
service of summons, that the trial court allowed impleadment by
order dated 17.3.2003 and therefore, the suit as against the 2nd
defendant can be presumed to have been instituted only on
17.3.2003. It is also pleaded in the same paragraph that going
by the averments in the plaint, last purchase by the defendant
from the plaintiff was on 28.8.1998. Therefore the suit as
against the 2nd defendant deemed to have been instituted on
22.8.2003 or on 17.3.2003 is barred by the law of limitation, so
long as the purchases are made three year before the said date.
Paragraph 3 of Ext.P5 written statement also deals with
limitation question.
5. Plaintiff subsequently filed I.A.No.4617/2004 under
Section 21(1) of the Limitation Act for a direction that suit as
W.P.(C).No.30575 of 2004 – M
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regards the 2nd defendant deemed to have been instituted on the
date of filing of the suit. The additional 2nd defendant for and on
behalf of the 1st defendant as well was examined on 16.9.2004.
She testified that she is the proprietrix of the Unit and marked
documents in support of her contentions. The plaintiff bona fide
believed that the first defendant is the proprietor of M/s.Shruthi
Industries. It is averred in the affidavit that he has no
information regarding any interest of the 2nd defendant wife in
the business run by the 1st defendant. According to the plaintiff
all through out the business transactions, he was dealing with the
1st defendant and he was made to believe on all such occasions
that the 1st defendant is the sole proprietor of M/s.Shruthi
Industries, that all correspondence regarding the business
transactions was made between the plaintiff and the first
defendant, that the first defendant issued three cheques to the
plaintiff as the sole proprietor of M/s.Shruthi Industries. The said
cheques are marked as Exts.A16 to A18. It is also averred in the
Ext.P6 affidavit that in the plaint itself the status of the first
defendant is stated as proprietor of M/s.Shruthi Industries. In
the written statement filed by the first defendant no contentions
are raised. Neither he contended that he is not the proprietor of
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the business nor the fact that his wife is the sole proprietrix. The
written statement is silent about the said fact. In fact, in the
written statement the only contention raised is that the goods
supplied are of inferior quality and therefore the plaintiff is not
entitled to claim the amount sought to be realised. The plaintiff
also brought to the notice of the court that the first defendant
revealed the fact that he is not the proprietor only in Ext.P3
application. Subsequently, in the written statement filed by the
2nd defendant she had taken the contention that the suit is
hopelessly barred by limitation. From the events and
circumstances narrated above and the conduct of the defendants
1 and 2 leads to be conclusion that both of them are waiting for
expiry of the requisite period for contending that the suit is
barred by limitation. The fact that the wife is the proprietrix is
deliberately concealed. The mention of the status of the 2nd
defendant as proprietrix by the 1st defendant after the expiry of
the suit period as against the 2nd defendant is no doubt a conduct
intended to defraud the plaintiff and the court. In fact, the 1st
defendant waited and see that during the passage of time, the
suit get barred and after finding that the suit was barred by
limitation he presented his wife before the court and contended
W.P.(C).No.30575 of 2004 – M
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that she alone is the proprietress and suit as against her is barred
by limitation. The conduct and subsequent events leading to the
impleadment of the 2nd defendant and conduct of defendants 1
and 2 justified in filing of Ext.P6 application by the plaintiff.
6. The trial court passed Ext.P8 order dismissing Ext.P7
application stating that the application is belated. Court below
failed to consider the events and circumstances that led to the
filing of the suit, filing of Ext.P3 I.A. by the first defendant, Ext.P4
impleading application and Ext.p7 application under Section 21
(1) of the Limitation Act. No doubt, the attempt of the
defendants was to defeat the plaintiff and going by the
circumstances it is beyond doubt that the attempt of the
defendants was to defeat the claim of the plaintiff.
7. The reasons stated for dismissing the application
cannot stand. It is true that the suit was listed on 1.9.2004 and
oral evidence was adduced by both sides during September,
2004. The petition could have been filed by the plaintiff little
earlier i.e., before the beginning of the trial. The learned Sub
Judge quoted Order I Rule 5 and Section 21(1) of the Limitation
Act holding that a specific direction is necessary for considering
the liability of additional defendant with effect from an earlier
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date other than the service of summons on the additional
defendant. The learned Judge further observed that in the
present case, plaintiff did not pray for such a direction in
I.A.No.4124/2004 or in subsequent applications before adducing
evidence of both sides. It is true that Ext.P6 application was filed
belatedly. At the same time conduct of defendants 1 and 2 in
concealing the fact that the additional defendant is the
proprietress of the industry is the most important fact to be
examined in a petition like Ext.P6. It is with specific purpose to
save such suits from the protection of limitation the proviso to
Section 21(1) was enacted. In these circumstances, prayer in
Ext.P6 petition filed under Order I Rule 5, as regards the 2nd
defendant deemed to have been instituted on the date of filing of
the above suit should have been allowed.
In the result, the writ petition is allowed. Ext.P8 order is
set aside. I.A.No.4617/2004 is allowed. Sub Court, Ernakulam is
directed to dispose of the suit in accordance with law within a
period of four months from the date of receipt of the copy of this
judgment.
HARUN-UL-RASHID,
JUDGE.
bkn/-