1. This civil first appeal is directed against the judgment and decree dated 17th March, 1998, whereby suit of the plaintiff came to be dismissed, which shall be hereinafter referred to as impugned judgment.

FACTS:

2. Appellant-plaintiff filed a suit for recovery of Rs.3,23,529/- before the trial court which came to be dismissed as time barred vide impugned judgment.

3. On 1st December, 1986 plaintiff executed a contract with defendants and agreed to provide cleaning services in the defendants factory on the monthly service charges of Rs.2250/- + Rs.4000/- as cost of material and the work was to be executed right from 1st February, 1989 till 31st March, 1991. The case of the plaintiff is that in the month of April, 1990 defendants closed their factory at Khonmoh, and despite of that plaintiff-appellant rendered his services continuously but defendants failed to make payment to the plaintiff in terms of the agreement which constrained the plaintiff to serve a notice upon the defendants on 6th December, 1994. But the defendants failed to make the payment which constrained the plaintiff to file a suit on 16th October, 1996.

Defendants appeared and filed written statement. Following issues came to be framed in the suit:

"1. Whether the plaintiffs suit is barred by time? ......... OPD

2. Whether contract dated 01.12.1986 executed by the parties has been frustrated by reason of application of the provisions of Section 56 of the Contract Act? ........ OPD

3. In case the issues No.1 and 2 are decided against the defendant whether the plaintiff is entitled to a sum of rupees 3,23,529/- in terms of para No.5 of the plaint? ........ OPP

4. Whether this court has no jurisdiction to try the suit, if so why? ........ OPD

4. Issues 1, 2 and 4 came to be treated as preliminary issues. Learned counsel for parties addressed arguments and trial court vide impugned judgment held that suit is barred by time.

5. Learned counsel for appellant argued that the suit was not time barred and was within time and the contract was continuing one and the limitation was to be computed from the date the breach ceased. It is profitable to reproduce Article 86 of the Limitation Act herein:

 

Description of suit	Period of limitation	Time from which period begins to run
86. For compensation for the breach of any contract, express or implied, not in writing registered and not herein specially provided for.	Three years	When the contract is broken, or (where there are successive breaches) when the breach in respect of which the suit is instituted occurs, or (where the breach is continuing) when it ceases.

6. This Article mandates that within which period suit for compensation on account of breach of any contract express or implied, can be filed.

7. When contract is broken time will start to run from the date it is broken or when there are successive breaches then from the date of that breach in respect of which suit is filed or when a breach is continuing then from the date when it ceases.

8. Now question is from which date the period of three years prescribed by Article 86 of the Limitation Act are to be computed?

9. In order to answer this question, it is necessary to reproduce para-12 of the plaint herein:

"12. That the cause of action arose in 1990 when the amount of Rs.32,346/- was not paid to the plaintiff. The cause of action also arose on 31.3.1991 i.e the date of the expiry of the agreement when the amounts were not paid and the said cause of action subsists till date."

10. Plaintiff on his own showing has given the date of cause of action 31st March, 1991. Thus, the suit was to be instituted by or before 31st March, 1994. But suit came to be filed on 16th October, 1996. On the face of it, the suit is time barred. Viewed thus, the trial court has rightly held that suit is time barred.

11. Learned counsel for appellant also argued halfheartedly that Article 86 of the Limitation Act was not applicable but Article 119 of the Limitation Act was applicable.

12. I am of the considered vi

Click Here to Read the rest of this document