Hansalia Agencies vs Johny and Lucykutty Johny

Harun-Ul-Rashid, J.—The plaintiff in O.S. No. 592/2000 on the file of the 2nd Additional Sub Court, Ernakulam is the writ petitioner herein. The writ petition is filed seeking to set aside Ext.P8 order dated 7.10.2004 passed in I.A. No. 4617/2004 in the suit.

The plaintiff filed a suit for recovery of Rs. 4 Lakhs and odd against the first respondent herein who is the sole defendant in the suit. The suit is for recovery of money being the cost of goods supplied by the plaintiff to the defendant and towards sales tax dues. In the plaint which is produced as Ext.P1 herein, the status of the sole defendant was shown as proprietor of M/s. Shruthi Industries, Thodupuzha. In Ext.P1 plaint it is also averred that the sole defendant had issued three cheques in discharge of his liability but when presented, the cheques were not honoured as the defendant had instructed stop payment. In the written statement filed by the sole defendant who is the first respondent herein it is inter alia contended that goods supplied by the plaintiff were of inferior quality and resisted claim of the plaintiff for recovery of the plaint amount. In the written statement filed by the first respondent/defendant, he has no case that he is not the proprietor of M/s. Shruthi Industries. Copy of the written statement is marked as Ext.P2.

The 2nd respondent herein is the wife of the first respondent. During the trial stage, the first defendant filed I.A. No. 5090/2002, marked as Ext.P3, seeking permission of the court to examine his wife as a witness. The said petition was allowed by the trial court. For the first time, in the affidavit filed in support of I.A. No. 5090/2002 (Ext.P3) the sole defendant revealed that the registration of the Unit is in the name of his wife and that he is not the proprietor of M/s.Shruthi Industries. Ext.P3 is dated 9.12.2002. Thereupon plaintiff filed I.A. No. 1503//2002 dated 10.1.2003 seeking to implead the wife of the sole defendant as additional 2nd defendant in the suit. In the affidavit filed in support of the impleading petition, the plaintiff narrated the sequences of events right from the filing of the suit till the filing of Ext.P3 by the sole defendant. The plaintiff in the affidavit stated that he came to know for the first time that the sole defendant''s wife is the proprietrix of M/s. Shruthi Industries. Impleading petition was allowed. Subsequently the 2nd defendant filed a written statement marked as Ext.P5 on 15.9.2003.

In paragraph 2 of Ext.P5 written statement the 2nd defendant contended inter alia that the suit is barred by limitation, that she is the proprietrix of M/s. Shruthi Industries and that summons is served on the 2nd defendant on 22.08.2003, in the impleading application, that the suit against the 2nd defendant deemed to have been filed only on 22.8.2003 as service of summons, that the trial court allowed impleadment by order dated 17.3.2003 and therefore, the suit as against the 2nd defendant can be presumed to have been instituted only on 17.3.2003. It is also pleaded in the same paragraph that going by the averments in the plaint, last purchase by the defendant from the plaintiff was on 28.8.1998. Therefore the suit as against the 2nd defendant deemed to have been instituted on 22.8.2003 or on 17.3.2003 is barred by the law of limitation, so long as the purchases are made three year before the said date. Paragraph 3 of Ext.P5 written statement also deals with limitation question.

Plaintiff subsequently filed I.A. No. 4617/2004 u/s 21(1) of the Limitation Act for a direction that suit as regards the 2nd defendant deemed to have been instituted on the date of filing of the suit. The additional 2nd defendant for and on behalf of the 1st defendant as well was examined on 16.9.2004. She testified that she is the proprietrix of the Unit and marked documents in support of her contentions. The plaintiff bona fide believed that the first defendant is the proprietor of M/s.Shruthi Industries. It is averred in the affidavit that he has no information regarding any interest of the 2nd defendant wife in the business run by the 1st defendant. According to the plaintiff all through out the business transactions, he was dealing with the 1st defendant and he was made to believe on all such occasions that the 1st defendant is the sole proprietor of M/s.Shruthi Industries, that all correspondence regarding the business transactions was made between the plaintiff and the first defendant, that the first defendant issued three cheques to the plaintiff as the sole proprietor of M/s.Shruthi Industries. The said cheques are marked as Exts.A16 to A18. It is also averred in the Ext.P6 affidavit that in the plaint itself the status of the first defendant is stated as proprietor of M/s.Shruthi Industries. In the written statement filed by the first defendant no contentions are raised. Neither he contended that he is not the proprietor of the business nor the fact that his wife is the sole proprietrix. The written statement is silent about the said fact. In fact, in the written statement the only contention raised is that the goods supplied are of inferior quality and therefore the plaintiff is not entitled to claim the amount sought to be realised. The plaintiff also brought to the notice of the court that the first defendant revealed the fact that he is not the proprietor only in Ext.P3 application. Subsequently, in the written statement filed by the 2nd defendant she had taken the contention that the suit is hopelessly barred by limitation. From the events and circumstances narrated above and the conduct of the defendants 1 and 2 leads to be conclusion that both of them are waiting for expiry of the requisite period for contending that the suit is barred by limitation. The fact that the wife is the proprietrix is deliberately concealed. The mention of the status of the 2nd defendant as proprietrix by the 1st defendant after the expiry of the suit period as against the 2nd defendant is no doubt a conduct intended to defraud the plaintiff and the court. In fact, the 1st defendant waited and see that during the passage of time, the suit get barred and after finding that the suit was barred by limitation he presented his wife before the court and contended that she alone is the proprietress and suit as against her is barred by limitation. The conduct and subsequent events leading to the impleadment of the 2nd defendant and conduct of defendants 1 and 2 justified in filing of Ext.P6 application by the plaintiff.

The trial court passed Ext.P8 order dismissing Ext.P7 application stating that the application is belated. Court below failed to consider the events and circumstances that led to the filing of the suit, filing of Ext.P3 I.A. by the first defendant, Ext.P4 impleading application and Ext.p7 application u/s 21(1) of the Limitation Act. No doubt, the attempt of the defendants was to defeat the plaintiff and going by the circumstances it is beyond doubt that the attempt of the defendants was to defeat the claim of the plaintiff.

The reasons stated for dismissing the application cannot stand. It is true that the suit was listed on 1.9.2004 and oral evidence was adduced by both sides during September, 2004. The petition could have been filed by the plaintiff little earlier i.e., before the beginning of the trial. The learned Sub Judge quoted Order I Rule 5 and Section 21(1) of the Limitation Act holding that a specific direction is necessary for considering the liability of additional defendant with effect from an earlier date other than the service of summons on the additional defendant. The learned Judge further observed that in the present case, plaintiff did not pray for such a direction in I.A. No. 4124/2004 or in subsequent applications before adducing evidence of both sides. It is true that Ext.P6 application was filed belatedly. At the same time conduct of defendants 1 and 2 in concealing the fact that the additional defendant is the proprietress of the industry is the most important fact to be examined in a petition like Ext.P6. It is with specific purpose to save such suits from the protection of limitation the proviso to Section 21 was enacted. In these circumstances, prayer in Ext.P6 petition filed under Order I Rule 5, as regards the 2nd defendant deemed to have been instituted on the date of filing of the above suit should have been allowed.

In the result, the writ petition is allowed. Ext.P8 order is set aside. I.A. No. 4617/2004 is allowed. Sub Court, Ernakulam is directed to dispose of the suit in accordance with law within a period of four months from the date of receipt of the copy of this judgment.