Correspondence acknowledging the non-delivery of machinery constituted promises that could extend the limitation period for filing a suit.

J UDGMENT

[Judgment of the Court was made by R.SUBRAMANIAN, J.]

The plaintiff in the Civil Suit in C.S.No.486/2016 is on an appeal challenging the judgment and decree made in the suit, dismissing the suit as barred by limitation. The learned Judge has not gone into the other issues, since he took up the issue of limitation as a first issue.

2. The plaintiff filed the suit for recovery of a sum of Rs.1,10,00,000/-

equivalent to 1,62,820 USD consisting of a sum of Rs.32,06,250/-, equivalent to 47,500 USD, being the cost of the undelivered equipment, Rs.5,41,350/- being the pro-rata packaging, forwarding, training, erection and installation charges and the freight charge paid by the plaintiff in respect of the undelivered machinery and a sum of Rs.40,36,500/-, being the interest @ 18% p.a. payable by the defendant in respect of the cost of undelivered equipment and installation charges thereon paid by the plaintiff and a sum of Rs.32,06,250/- being the loss suffered by the plaintiff due to the non-delivery of the equipment.

3. The suit came to be filed in the following backdrop:

3.1. The plaintiff, which is a limited company in Tanzania, placed orders for purchase of various machineries for setting up a water processing unit and a retail packaging unit in Tanzania. Four items of machineries were ordered and they are as follows:

S.No.	Description	Qty	Price In Dollars
1	1000 LPH Mineral Water Processing with Antiscalant Dosing, 2 stage UV and 3 Stage Micron Filter, Final	1 No.	US $ 7,000.00

	Ozonator, 1000 Litres Blending Tank, 1000 litres Ozone Contact Tank and 2 Nos. SS forwarding Pump
2	30 BPM Rotary Filling Machine with Rinser, filler and capper and online built in shrink tunnel for PVC labels	1 No.	US $ 15,000.00
3	Fully Automated Pet Blowing Machine SSB20 @ 2000 BPH Mould: 300 ml, 500 ml, 1000 ml, 1500 ml Compressor Drier & Chiller	1 No.	Us $ 47,500.00
4	Multiple Shrink Wrapping Machine for Packing the Pet Bottles	1 No.	US $ 7,500.00

Remaining three items represent packaging and forwarding charges, training, erection and installation charges, sea freight and container charges. Proforma Invoice was issued by the first defendant on 28.10.2009.

3.2. It is not in dispute that the entire Proforma Invoice amount of 90,000 US$ was received by the defendants by 11.01.2010, in four tranches. While the defendant supplied the other machineries, the Fully Automatic Pet Blowing Machine, which of a value of Rs.47,500 USD was not supplied.

3.3. The plaintiff made several complaints through e-mails and there were responses from the defendant and its representative regarding supply of machineries at various points of time. Finally when the plaintiff could not succeed in its attempt to persuade the defendant to supply the machinery, a Lawyer's Notice was issued on 21.05.2015, claiming cost of machinery and damages. A reply was sent to the said notice on 17.06.2015, wherein it was claimed that all the machineries were delivered. This forced the plaintiff to send a rejoinder dated 31.08.2015 and the same was followed up with the institution of the suit on 20.06.2016.

3.4. According to the plaintiff, non-supply of machineries entails them to a judgment and decree for payment of the value of machineries with interest and damages.

3.5. The defendants resisted the suit by contending that the suit is barred by limitation, it had supplied the machineries but the plaintiff had not taken delivery of the machineries from the Port, which according to the plaintiff false.

3.6. Before the trial Court, PW1 was examined on the side of the plaintiff and Exs.P1 to P33 were marked. On the side of the defendant, DW1 was examined and Exs.D1 and D2 were marked. The learned Single Judge, upon consideration of the evidence, concluded that the Suit is barred by limitation and mere correspondences between the parties cannot extend the period of limitation. According to the learned Judge, lim

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