( 1 ). The Air India (hereinafter describe as the plaintiff) has filed the present suit pleading that the plaintiff is engaged in the business of carriage by air of passengers and cargo. The defendant (Shyam antenna Electronics (P) Ltd.) through its agent freight wings Travels (P) Ltd on 12/1/1991 booked with the plaintiff 11 packages of electronic goods vide the bill dated 12/1/1991 for moscow. The shipment consisting of the said packages of electronic goods was received by the cargo department of the plaintiff on 16/1/1991. As per Government of India regulations consignments have to undergo cooling off period of 36 hours before they could be air lifted on the plaintiff s flight, after the receipt of the consignment by the plaintiff. As per instructions of the defendant the shipment was transferred to the Aeroflot Airlines on 17/1/1991 for transportation of shipment to Moscow. The defendant by its letter of 24/6/1991 requested the plaintiff to bring the shipment back to Delhi. The defendant in its letter of 24/6/1991 confirmed its liability to pay the freight and other charges. The plaintiff had sent a message to Moscow to return the said consignment. The Aeroflot debited storage and freight charges and tax from Moscow to delhi. On arrival of the above named shipment back to delhi notice was sent to the defendant on 31/7/1991 with a demand for Rs. 9,72,140. 00 being the amount paid to the Aeroflot by the plaintiff. The plaintiff failed to make the payment. The plaintiff on 6/11/1991, 9/12/1991 and 13/12/1991 requested and reminded the defendant to pay the aforesaid amount. Instead of paying the amount defendant instituted a suit in this court for a declaration that letter of the plaintiff dated 31/12/1991 was illegal and void. During the pendency of the suit the Court directed the plaintiff to hand over the delivery against the airway bill to the defendant on defendant s furnishing a bank guarantee equal to the value of the shipment. The goods were released. This court had directed the defendant to keep the bank guarantee alive. It is asserted that the defendant who was the plaintiff in that suit stopped appearing therein and on 19/7/1994 the suit was dismissed in default. Plaintiff s claimed the said amount which would due with interest.

( 2 ). In the written statement filed by the defendant preliminary objection has been taken that the suit is barred by time because it is asserted that according to the averments made the suit is for recovery of the freight charges besides certain another amounts. The cause of action as per the plaintiff has arisen on 31/7/1991 and thus the limitation period has expired on 31/7/1994. The suit having been filed on 8/10/1996 is patently barred by time. It has also been asserted that the suit is bad for non-Joinder of the necessary parties and that it is not properly signed and verified. Certain pleas on merits have also been taken which are not relevant for the purposes of the present judgment.

( 3 ). In the replication filed it was admitted by the plaintiff that the defendant had filed the suit no. 559/92 as also alleged in the plaint and it is reiterated that during the pendency of the said suit the Court directed the plaintiff to hand over the delivery of the consignment to the defendant on his furnishing a bank guarantee to the tune of rs. 1,09,750. 00. It is the case of the plaintiff that defendant with mala fide intention had stopped appearing in that suit to frustrate and pre-empt adjudication of the counter claim of Rs. 9,72,140. 00.

( 4 ). From the pleadings of the parties this Court on 28/4/2002 had framed the issues but issue No. 2 was treated as a preliminary issue and it reads as under:-

"2. whether the suit is within time?"

( 5 ). It is apparent from aforesaid and that was the contention of the defendant that cause of action had arisen to the plaintiff on 31/7/1991 and, therefore, the period of limitation expired on 31/7/1994. The suit having been filed much after tha