KERALA STATE ELECTRICITY BOARD Vs. CHACKO PILLAI

JUDGEMENT

(1.) This appeal arises from the decree of the Subordinate Judge of Irinjalakuda. The defendant, the Kerala State Electricity Board, is the appellant. The plaintiff entered into a contract with the defendant on 23-8-1962 for the construction of the Sholayar Dam at the second stage. The agreement provided that the sand required for construction would be supplied by the defendant to the plaintiff free of cost. The construction commenced on 14-9-1962. For a short period, that is upto 25-10-1962, sand was supplied by the defendant at the work site. Thereafter the defendant stacked sand about 1 1/2 miles away from the place of work. As a result of the refusal of the defendant to provide sand at the place of construction, the plaintiff was compelled to lift the sand at considerable expense by way of loading, transporting and unloading charges. When the plaintiff's claim for these charges was rejected by the defendant, the plaintiff made a request for reference of the dispute to arbitration. But that request was turned down by the defendant. Consequently the plaintiff instituted O. S. No. 3/1964 in the Sub Court of Irinjalakuda on 12-2-1964. In that suit the plaintiff claimed charges at Rs. 14.37 per 100 c. ft. for a total quantity of 16 lakhs c. ft. transported till the date of the plaint and for payment at the same rate for charges to be incurred in the future. The reliefs sought by the plaintiff were:

(2.) The principal contention which is now urged before us by the appellant defendant's Counsel, Shri Sivasankara Panicker, is as regards limitation The appellant has also a dispute regarding the quantity of sand transported during the relevant period. However, the character of the suit as a suit on judgment is not disputed by the appellant's counsel. According to him the learned trial Judge wrongly held that the period of limitation began to run only from the date of the judgment of this Court in A. S. No. 93/1969, that is as from 23-11-1973. He says that the period should have been reckoned from the date of the decree of the Trial Court in O. S. No. 3/1964, that is, 14-6-1968. Counsel further contends that, in addition to the fact that the present suit is barred, if limitation is so reckoned from 14-6-1968, the plaintiff's cause of action which arose on 9-10-1964, which was the last date of transport of sand, had already become barred on the date of the decree in O. S. No. 3/1964, viz., on 14-6-1968.

(3.) We shall first deal with the question of limitation. For the purpose of Art.101 of the First Schedule of the Limitation Act, 1963, the period prescribed is three years from the date of the judgment. The judgment for the purpose of Art.101 means the final decree in that suit: Baijnath v. Vallabhdas AIR 1933 Mad. 511 . A judgment under appeal, or for which the appeal time has not expired, is not final, but only a provisional judgment, and does not operate as res judicata. As stated by the Privy Council in S. P. A. Annamalay Chetty v. B. A. Thornhill ( AIR 1931 PC 263 , at 264):