IMPORTANT POINT
The court established that the starting point for limitation under the Limitation Act depends on when the right to sue accrues, not merely on the date of breach or completion of work.

JUDGMENT :

Harisankar V. Menon, J.

The unsuccessful additional plaintiffs 2 to 4 in O.S.No.1551 of 1991 on the file of the Principal Sub Judge, Thiruvananthapuram, are the appellants in this Regular First Appeal filed under Section 96 read with Order 41 Rule 2 of the Code of Civil Procedure (CPC). The suit was originally filed by the appellants’ deceased father, Sri. E.M. Varkey, who was a contractor by profession. Pending the suit, Sri. E.M. Varkey passed away, and therefore the appellants herein, in their capacity as the legal representatives of the deceased, got themselves impleaded in the suit as per order dated 24.09.1993 in I.A.No.3981 of 1993 and I.A.No.3982 of 1993. The above suit stood dismissed by a judgment and decree dated 27.09.2006, and it is challenging the above judgment and decree that the captioned appeal is filed by the appellants herein.

2. The short facts necessary for the disposal of this appeal are as under:

Sri. E.M. Varkey was a contractor by profession, and he had undertaken a contract for the work of “Sabarigiri Augmentation Scheme - construction of a Diversion Tunnel from Gavier to Meenar I – balance works” pursuant to an agreement dated 23.09.1981. The period for completion of the work was 16 months, which stood extended later, and ultimately the work was completed during October, 1986. The suit was presented alleging that the defendant committed a breach of contract and that huge amounts were payable to the plaintiffs, which were being wrongfully withheld. The above suit for realisation of money was tried by the Principal Sub Judge, Thiruvananthapuram. The Sub Judge framed as many as six issues for consideration. By the impugned judgment and decree, the Principal Sub Judge decided all the issues against the plaintiffs. It is in the above circumstances, that the plaintiffs are before this Court in the captioned Regular First Appeal.

3. On 25.02.2010, this Court admitted the appeal. Later, a mediation was attempted between the contesting parties through the Mediation Centre attached to this Court. However, on 31.07.2014, the Nodal Officer, Ernakulam Mediation Centre, attached to this Court, reported that the attempts at mediation had failed. That is how the appeal has been taken up for final hearing by this Court.

4. We have heard the learned Senior Counsel appearing for the appellants herein and the learned counsel appearing for the respondent Electricity Board.

5. The learned Senior Counsel for the appellants contends that the issue of limitation decided by the trial court was even without a proper issue being raised by the defendants in the written statement, that the issue of limitation was orally raised by the defendant at the time of the hearing, that the provisions of law relied on by the trial court for deciding the issue of limitation against the appellant herein was not correct and that the counsel for the defendant before the trial court was not sure as to which Article of Limitation Act was applicable in the facts and circumstances of the case, which fact has been recorded also by the trial court, that the suit was one filed within the time prescribed under Articles 54 or 113 read with Section 18 of the Limitation Act, 1963. The learned Senior Counsel further contends that the findings of the trial court on merits, on the various claims made in the suit were also erroneous.

6. Per contra, the learned counsel for the respondent Board points out that the question of limitation can be considered by the Court even without the defendant raising the said contention in the written statement since limitation is one touching the jurisdiction of the Court and that is why the trial court raised the preliminary issue “is the suit maintainable?” and the findings rendered by the trial court were justified. On the merits also, the learned counsel for the respondent-defendant seeks to sustain the findings contained in the impugned judgment of the trial court.

7. We have considered the rival contentions as well a