The appellant and the respondent were the plaintiff and defendant in O.S.No.207 of 1992 on the file of Subordinate Judge, Kottarakkara. The suit was for compensation of breach of contract. In response to the notice published by the appellant on 25.7.1999 the respondent submitted a tender on 17.8.1989 for purchase of 100 metric tons of rubber trap. The purchase price quoted by him was Rs.6,159/- per metric ton. He deposited Rs.10,000/- as earnest money. The appellant accepted his tender. He was bound to execute a formal agreement within seven days of receipt of communication of the acceptance of offer and take delivery of the goods within 30 days of the receipt of intimation of the acceptance. By the telegram sent on 19.8.1989 and by the letter dated 24.8.1989 the appellant communicated its acceptance of the tender to the respondent. It called upon the latter to execute the agreement within seven days of the receipt of the communication. The communication was received by the respondent on 28.8.1989. He did A.S.No.453 of 1999 2 not execute the agreement. Nor did he take delivery of the goods. As per the conditions in the tender the appellant was entitled to resell the goods. Accordingly, it was resold on 19.10.1989 after informing the respondent. At the resale the appellant got Rs.5,11,000/-. The loss was Rs.1,04,900/-. It spent Rs.14,015/- to advertise the resale. Thus, the total loss is Rs. 1,18,915/-. The appellant filed the suit claiming this amount and Rs.24,500/- as ground rent. The learned Sub Judge dismissed the suit on the ground that the suit was barred by the law of limitation.
2. In this appeal the only question arising for consideration is whether the suit was barred by the law of limitation.
3. Heard the learned counsel for the appellant and the respondent.
4. Learned counsel for the appellant submits that the Article that is applicable to the facts of the case is 113 of the Limitation Act. According to him the appellant sustained loss only on resale. The cause of action arose only on resale and three years has to be computed from the date of resale only.
5. A division bench of this court in AS No.852 of 1998 in which the appellant was the appellant held that in such a situation the Article applies is 55 of the Limitation Act and S.23 of the Act is not applicable. I am bound by it. So the cause of action arose not on the date of resale, but on the date of the breach of contract. Admittedly, the contract was broken on 5.9.1989. The suit should have been filed on or before 6.9.1992. It was filed only on 9.10.1992. It was barred by the law of limitation. The learned Sub Judge rightly held so.
In the result, this appeal is dismissed.
K.ABRAHAM MATHEW JUDGE pm