Decided on November 14,1974

Pocker Haji Appellant
P.V. Muhamed Barmi And Sons Respondents


CHANDRASEKHARA MENON,J. - (1.) DEFENDANT is the appellant. The suit,which has been decreed by the court below,giving rise to this appeal had been filed by the respondent on the following allegations: In pursuance of an agreement Ex.A -2 dated 8th June 1963,the defendant was to supply 5000 pieces of kolmaram at plaintiff's depot at Kallai before 31st October 1963.The contract had provided for a commission to the plaintiff at rupee one per piece deducting expenses.By means of a cheque of the same date as Ext.A -2,defendant had been given Rs.25,000 for carrying out the agreement.On 17th August 1963 the defendant again received a sum of Rs.5000.However,he failed to supply the kolmaram.When he was called upon to supply the timber or refund the amount received by him,defendant approached the plaintiff and gave a letter admitting his liability aforesaid,namely Rs.30,000 and agreeing to pay a sum of Rs.5,000 in March 1965,Rs.10,000 in May 1965 and the balance of Rs.15,000 in September 1965.This letter dated 9th February 1965 is marked in this proceedings as Ext.A -3.On 2nd April 1965,the defendant gave another letter,Ext.A -4 in the case reiterating his promise to pay the amounts as agreed to above.As per the agreement the defendant is liable to pay damages for breach of contract at the rate of Re.1 per piece of timber.This would come to Rs.5,000.Relinquishing his claim for interest,the respondĀ­ent herein filed the suit for Rs.35,000 with future interest.
(2.) THE defendant appellant raised the following contenĀ­tions resisting the plaintiff's claim:" (a)The suit is not maintainable in law as the suit is brought by a firm which is not registered according to the provisions in the Indian Partnership Act; (b)The suit claim is barred by limitation and the documents relied on by the plaintiff for saving the bar of limitation are not in law acknowledgments of the liability in question; (c)The defendant had not in fact entered into an agreement with the plaintiff to supply kolmaram.The plaintiff's agreement was with A.K.Kunhammad and M.Alikutty .These persons had agreed to supply the timber.The defendant was only a commission agent and Ex.A -2 was executed by him to secure the advances plaintiff had agreed to give to the two aforementioned persons.As regards the letters mentioned in the plaintiff,they were all passed only to help the plaintiff in regard to some taxation proceedings against him. In respect of the defendant's contention that the suit is not maintainable as the plaintiff firm have not produced therein certificates of registration of the partnership,the plaintiff depended on Ex.A -10 the certificate of registration which showed the name of the firm as Hajee P.V.Muhammed Baramy Sons whereas the details in the plaint showed the name of the plaintiff as Hajee P.V.Muhammed Baramy and Sons .The plaintiff sought an amendment of the plaint by correcting the name of the plaintiff as Hajee P.V.Muhammed Baramy Sons in accordance with the particulars shown in the certificate of registration.Along with the application for amendment which had been filed I.A.1505 of 1971 an affidavit in support of the same had been filed sworn to by one K.R.Unnithan,an accountant of the plaintiff -firm wherein it had been stated that the correct name of the plaintiff is really Hajee P.V.Muhammed Barami Sons and not P.V.Mohammed Barami and Sons as originally described in the plaint.This mistake as well as certain other mistakes which were also sought to be corrected by the amendment,it was said,were due to clerical error (..[VERNACULAR TEXT OMITTED]..).No counter was filed to this application and it was allowed by the order of the court below dated 15th December 1971.However it would appear this amendment was not carried out in the original plaint as required by law before the suit was finally decreed.In fact it was only after the appeal was filed and when the pleadings were sought to be sent for printing the non -carrying out of the amendment in the plaint was noticed.Then the plaint and I.A.1505 of 1971 were forwarded to the court below.The Sub Judge was requested to see that the amendments were carried out in the plaint and the papers returned to the High court forthwith.The Sub Judge was also asked to obtain and submit the explanations of the persons responsible for the same.It is in these circumstances that the amendment concerned was carried out in the plaint.
(3.) THE trial court decreed the suit for Rs.30,000 but denied the plaintiff his claim for damages as it was held that part of the claim was barred by limitation.;

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