JUDGMENT :

1. Heard learned advocate Ms. Archana Amin for the appellant. Though served, none appeared for the respondent/s. Perused the record.

2. This appeal is filed under Section 96 of the Code of Civil Procedure, 1908 (for short, hereinafter referred to as `the Code’), whereby, a challenge is made against the judgment and order dated 30.3.2002 passed by the learned Civil Judge (Senior Division), Nadiad in Special Civil Suit No.59 of 1996.

3. The facts in brief are as under:

* The appellant – original plaintiff filed a Special Civil Suit No.59 of 1996 before the learned Senior Civil Judge, Nadiad for recovery of Rs.15,54,588-84 Paisa towards damages from the respondent – original defendant. The defendant no.1 was a successful bidder and a contract was entered into for transfer of food products and fertilizers from Nadiad Railway Station to Hatani and Sundhana. A security deposit of Rs.60,000/- was deposited with the plaintiff. The period of contract was for 2 years commencing from 18.6.1985 to 17.6.1987. The period of contract was extended upto 11.8.1987. The defendant started transporting from 18.6.1985 but thereafter, the defendants failed to perform their part of contract. Resultantly, the plaintiff had incurred losses by way of demurrages, wharfage, re-booking charges etc. The liability of the defendant as per the terms of the tender agreement was fixed by the competent authority of the plaintiffs on 8.4.1993.

* A letter dated 17.7.1993 was issued to the defendants calling upon the defendants to pay the amount of damages of Rs.15,54,588-84 Paisa. Defendants appeared and filed Written Statement at Exh.21. The learned trial Court framed issues vide Exh.28. The defendants resisted the suit on the ground of limitation. It was the case of the defendants that the suit of the plaintiffs is time barred. It is also the case of the defendants that the claim of Rs.15,54,588-84 Paisa towards damages etc. is unreasonable and unjustified. It was the case made out by the defendants that the contract was not terminated by the plaintiffs and the account was not settled though huge amount is due and payable by the plaintiffs to the defendants under the contract.

* A counter claim was also raised by the defendants alongwith Written Statement Exh.21. The counter claim was replied to, by the plaintiffs vide Exh.26. Plaintiff had examined Ashokbhai Ramchandra Karnik at Exh.34 and also examined three witnesses namely; Aasardas Trikamdas Golani, Girishbhai Shantighar Bhatt and Sanjay Kuldev Prasad vide Exhs.60, 66 and 85 respectively. The plaintiff also produced various documentary evidence. Defendant examined Vijaybhai Natvarlal Dantani at Exh.95 and a witness Krishnakumar Anant Wade at Exh.123. Defendant also produced various documents in support of their contention.

4. Learned advocate for the appellant submitted that out of all the issues, only issue no.8 which pertains to the limitation was held against plaintiffs. However, other issues were decided in favour of the plaintiffs. It is submitted that the learned trial Court has committed an error by relying upon Articles 23 and 55 of the Limitation Act, 1963 (for short, hereinafter referred to as `the Act’). Learned advocate for the appellant submitted that Articles 23 and 55 of the Act are not applicable in the present set of facts. Article 112 of the Act is applicable.

5. Learned advocate for the appellant has referred and relied upon Article 112 of the Act which is reproduced hereunder for the sake of convenience.

6. Learned advocate for the appell