JUDGMENT : 1. This Appeal has been filed by the appellant/plaintiff against the Judgment and Decree passed by the learned Additional District Judge (Fast Track Court), Dindigul in A.S.No.66 of 2004, dated 19.12.2008, 2. The appellant/plaintiff had filed a suit in O.S.No.288 of 2001 on the file of the learned Additional Subordinate Judge, Dindigul, seeking relief to pass a decree for a sum of Rs. 2,97,000/- (Rupees Two Lakhs Ninety Seven Thousand only) with the future interest at the rate of 12% per annum on Rs. 2,23,318/- (Rupees Two Lakhs Twenty Three Thousand Three Hundred and Eighteen only) from the date of plaint till the date of discharge and to direct the defendants to pay the said decree amount jointly and severally to the plaintiff with future interest at the rate of 12% till the date of discharge along with the cost of the suit. 3. The learned Additional Subordinate Judge, Dindigul, by the Judgment and Decree dated 27.02.2004 allowed the suit and directed the defendants to pay the suit sum along with interest. Aggrieved by the same, the defendants/respondents herein have filed an appeal in A.S.No.66 of 2004 on the file of the learned Additional District Judge (Fast Track Court), Dindigul. 4. The learned Additional District Judge (Fast Track Court), Dindigul, by the Judgment and Decree dated 19.12.2008 allowed the appeal without cost by setting aside the Judgment and Decree dated 27.02.2004 made in O.S.No.288 of 2001. Feeling aggrieved by the same, the plaintiff herein has filed the present second appeal. 5. For the sake of convenience the parties are referred to as, as described before the trial Court. 6. The averments made by the plaintiff in brief are as follows: The plaintiff is a company incorporated under the Companies Act, 1956, engaged in the Trade of Elevator Manufacture along with supply and installation. The first defendant is an associate body of the second defendant. In pursuance of the order placed by the defendants for supply and installation of two elevators (one Passenger lift and another Service lift), the plaintiff supplied them with full requisites along with the invoice covering full particulars to the defendants, who in turn, acknowledged the receipt of the same. Under the said dealing, the defendants owe a sum of Rs. 2,23,318/- to the plaintiff as a balance towards the material cost for which Rs. Under the said dealing, the defendants owe a sum of Rs. 2,23,318/- to the plaintiff as a balance towards the material cost for which Rs. 16,614.40/- due to the increased sales tax percentage from 15 to 20%. The said liability was admitted by the defendants in their letters, dated 11.08.1988 and 28.08.1998 and reply notice dated 29.12.1999. Admittedly, the order placed by the defendants with the plaintiff is one for supply and installation of elevators inclusive of erection charge of Rs. 40,000/-. 6.1. It is a well known fact that the installation work depends solely on the site-readiness, which is the work of the defendants. The defendants assured the plaintiff that they would inform site-readiness after its completion so as to enable to commence the erection work with promise to pay dues soon. Whenever on such demands for payment of dues and sitereadiness, the defendants deferred the same under some pretext or other, simply with a promise to oblige soon. Only on 25.07.1998, at a first time, the plaintiff's Trichy Branch received information through a letter dated 22.07.1998 that the defendants were in a position to get the lifts erected; but, there was no mention of the completion of the civil work. Thereafter, on 01.08.1998, the plaintiff was informed that the civil work was completed through their letter dated 31.07.1998. At that time, the defendants insisted the payment of Rs. 2,23,318/- towards the balance of the material costs before the commencement of the work. But there was no reply from the defendants. Hence, the plaintiff issued legal notice dated 15.12.1999 demanding the payment of dues. Though the defendants admitted the terms of the order placed and the correctness of the quantum of the amount due to the plaintiff, in their reply notice, dated 29.12.1999, they alleged an untenable plea, after long wait, that the material supplied were of inferior and substandard in nature. 6.2. Sensing and knowing fully well, unless the due is paid, the erection work would not be started, the defendants has sought and obtained the assistance of the rival company for the work of installation and with their help, the defendants installed the very lifts supplied by the plaintiff with a view to avoid immediate payment. Coming to know the above said fact, the plaintiff again on 25.05.2001 sent a legal notice demanding the payment of dues. Coming to know the above said fact, the plaintiff again on 25.05.2001 sent a legal notice demanding the payment of dues. But in their reply notice, dated 03.05.2001, the defendants mentioned that there was an extensive damage to the extent of Rs. 2,00,000/- to the material supplied without even mentioning any particulars. Hence, the plaintiff calculated the interest at the rate of 12% per annum for the due amount of Rs. 2,23,318/-, from 18.09.1998 to 18.06.2001. After sending the reply notice, till date, the defendants did not pay any amount to the plaintiff. Hence, the suit is laid for the recovery of amount of Rs. 2,97,000/-. 7. The averments made in the written statement filed by the defendants, in brief, are as follows: Resisting the claim made by the plaintiff by filing a written statement, the defendants have stated that it is false to state that the defendants 1 and 2 are associate body. Further, stated that the first defendant's Director placed orders with the plaintiff for the supply and installation of one Passenger lift and another Service lift for Hotel Padma in the year 1990. The entire transaction was done on behalf of the plaintiff by Mr.T.Munusamy, who was working as a Sales Manager. The wooden boxes containing the materials, which were sent in the year 1991 were kept intact at the go-down of RVS Engineering College. After the completion of civil work, the first defendant wrote several letters to the plaintiff and also made several phone calls to the plaintiff's branch office at Trichy and Coimbatore for erection of the lift. But, the plaintiff delayed the matter unnecessarily and at last, when the plaintiff's men came and opened some of the boxes, the defendant found that the materials were of inferior quality and not the one that the first defendant was shown at Madras. Even without seeing the materials, the first defendant has paid a sum of Rs. 5,11,000/-. According to the bill prepared by the plaintiff's Sales Manager, the due is Rs. 2,06,677/-. The said amount was arrived at on the assumption that the materials were good and fit for erection. On account of the plaintiff's default on non-erecting the good and proper lifts, the first defendant has suffered a loss of Rs. 5,11,000/-. After deducting the charge of erection (Rs.40,000/-) from the invoice amount of Rs. 2,06,677/-. The said amount was arrived at on the assumption that the materials were good and fit for erection. On account of the plaintiff's default on non-erecting the good and proper lifts, the first defendant has suffered a loss of Rs. 5,11,000/-. After deducting the charge of erection (Rs.40,000/-) from the invoice amount of Rs. 7,57,676/- and after deducting the amount already paid, the plaintiff was entitled to the balance of Rs. 2,06,676/- only on the completion of erection of proper goods. He did not do so at all. The lift sent by the plaintiff is absolutely useless for being erected without extensive repairs. At that time, one of the companies in Madras has come forward to replace the damaged elevator with a good one to the first defendant, for which, the first defendant has to pay an additional sum of Rs. 2,00,000/-. The other allegation levelled by the plaintiff is not correct. Moreover, the suit is barred by limitation and the first defendant has not acknowledged the liability to the plaintiff. Thus, according to the defendants, the suit is liable for dismissal. 8. The brief facts in the additional written statement filed by the first defendant are as follows: The suit claim of the balance amount is not at all payable to the plaintiff under law due to their non-performance of the contract. It is false to allege that it was because of the "own act" of the defendants, the installation work could not be commenced. The delay in getting the premises ready for installation of lifts is not at all a matter for consideration, when the plaintiff had already realised the cost of the materials. Hence, the suit claim is not at all maintainable. 9. In the averments made in the reply statement filed by the plaintiff, he has stated that the plaintiff is a standard reputed Firm, which produces and markets quality finished material from its factory, having the normal production exceeding 1500 units per annum, under the Indian Standard Institute expert's supervision. The materials sent were substandard or damaged one is baseless, untenable, incredible, unfounded and motivated. Non-erection of the lifts is not at the fault of the plaintiff, but it was the fault of the defendants because of the phenomenal delay on their part. The materials sent were substandard or damaged one is baseless, untenable, incredible, unfounded and motivated. Non-erection of the lifts is not at the fault of the plaintiff, but it was the fault of the defendants because of the phenomenal delay on their part. In no way, the plaintiff is responsible and he could not be made responsible in any manner, but only the defendants are responsible and accountable. 10. Based on the above said pleadings, the learned Additional Subordinate Judge, Dindigul had framed necessary issues and tried the suit. 11. Before the trial Court, during the trial, one Sivagnanam had examined as PW.1 and 10 documents were marked as Exs.A1 to A10. On the side of the defendants, one Tanthonri had examined as DW.1 and 11 Documents were marked as Exs.B1 to B11. 12. The learned Additional Subordinate Judge, Dindigul, after considering the materials placed before him found that the documents exhibited on the side of the plaintiff proved the contract made between the plaintiff and the defendants. Further, he observed since the defendants acknowledged the due, the claim is not barred by limitation and accordingly, allowed the suit and directed the defendants to pay the suit amount. 13. On the other hand, in the appeal filed by the defendants, the learned Additional District Judge,(Fast Track Court), Dindigul observed that only on the completion of the erection of proper lifts, the plaintiff is entitled to claim Rs. 2,06,676/- from the defendants and for the reason that the plaintiff has supplied the defective goods, the plaintiff is not entitled to the relief as made in the suit and finally allowed the appeal and set aside the Judgment and decree rendered by the trial Court. 14. In the said circumstances, while at the time of admitting the Second Appeal, this Court has formulated the following Substantial Questions of Law, for consideration:- "1. Whether the finding of the lower appellate Court that the respondents/defendants were able to prove that the Elevators supplied by the appellant/plaintiff were not the Elevators erected in the Hotel premises is perverse? 2. Whether the lower appellate Court committed an error in law in holding that the respondents/defendants were entitled to repay the balance amount of cost of materials supplied by the appellant/plaintiff in the absence of any claim of set-off or counter-claim regarding the quality of materials supplied by the appellant/plaintiff? 3. 2. Whether the lower appellate Court committed an error in law in holding that the respondents/defendants were entitled to repay the balance amount of cost of materials supplied by the appellant/plaintiff in the absence of any claim of set-off or counter-claim regarding the quality of materials supplied by the appellant/plaintiff? 3. Whether the lower appellate Court committed an error in rejecting the claim of the appellant/plaintiff for the recovery of the balance amount of the cost of the materials supplied to the respondents/defendants, when the respondents/defendants had not chosen to return the materials to the appellant/plaintiff on the basis of their contention that they were of inferior quality?" Substantial Question of Law No.1: 15. It is an admitted fact that the defendants placed an order before the plaintiff for the purchase of two elevators to the newly constructed hotel, in the name 'Hotel Padma Private Limited'. Further, it was admitted on both sides that the cost of the lift is Rs. 7,57,676/- and Rs. 40,000/- is fixed separately towards the cost of erecting charges. Ex.A2, the letter dated 11.08.1998 issued by the second defendant confirmed the same. As per the said letter, Rs. 2,06,676/- is due payable to the plaintiff. Further, Ex.A3, which is the another one letter dated 28.08.1996 sent by the second defendant had also confirmed that the defendants are agreed to pay outstanding amount of Rs. 2,06,676/-. 16. From the averments, it is clear that only after completing the civil work, the elevators have to be erected in the building. In this regard, it was admitted on both sides, after completing the civil work, on 22.07.1998, the defendant sent a letter (Ex.A4) to the plaintiff for installing the same. Further on 31.07.1998, the defendants sent another one letter to the plaintiff in which it was mentioned that the civil work have been completed and the building is ready for erecting the lift. The said letter was marked as Ex.A5 before the trial Court. After receiving the said letter, on 18.09.1998, the plaintiff sent a letter to the defendants for the payment of the balance due. Further, in the said letter, the plaintiff has stated only after the payment of earlier due, the lift will be erected in the said premises. The said letter was marked before the trial Court as Ex.A6. After receiving the said letter, on 18.09.1998, the plaintiff sent a letter to the defendants for the payment of the balance due. Further, in the said letter, the plaintiff has stated only after the payment of earlier due, the lift will be erected in the said premises. The said letter was marked before the trial Court as Ex.A6. Further on 15.12.1999, another one letter was sent to the defendants with request to pay the due. The said letter was marked as Ex.A7 for which on 29.02.1999, through an advocate, the defendants sent a reply notice stating that the materials supplied already in the year of 1992 is inferior quality and the balance amount was calculated only on assumption. Moreover in the said letter, it was stated by the defendants that the amount due is payable only after erecting the lift. The said letter was marked as Ex.A8. Thereafter, the defendants erected the lift by using the service of some other company. From the notices sent by the plaintiff as well as by the defendants, it appears that as per the contract, the plaintiff supplied the materials in the year 1992, subsequently, the building was made ready only in the year of 1998 for erecting the lift. Further, both of them have admitted the cost fixed to the materials and a sum of Rs. 2,06,676/- is due from the defendants. In the said circumstances, since the plaintiff and the defendants, through the letters sent to each other, admitted the due, it is not necessary to find out whether the elevators supplied by the plaintiff is erected in the hotel premises or not. The lower appellate Court without understanding the entire factual position came to the conclusion that the plaintiff has not proved the fact that the elevator fixed in the defendants' hotel is not from the materials supplied by the plaintiff. So, the findings arrived at by the First Appellate Court in this respect is nothing but perverse. Therefore, the Substantial Questions of Law No.1, is answered in favour of the plaintiff. Substantial Question of Law Nos.2&3: 17. Now, on going through the prayer sought for by the plaintiff, it was only for a direction to the defendants to pay the suit sum. On the other hand, the defendants have not initiated any legal proceedings in respect to the inferior quality of the materials, now stated in the letter-Ex.A. 8. Substantial Question of Law Nos.2&3: 17. Now, on going through the prayer sought for by the plaintiff, it was only for a direction to the defendants to pay the suit sum. On the other hand, the defendants have not initiated any legal proceedings in respect to the inferior quality of the materials, now stated in the letter-Ex.A. 8. Eventhough it was disputed on the side of the defendants that the supplied materials were in inferior quality, it is for the defendants to prove the quality of the materials. Otherwise, the suit is only in respect of collecting the dues admitted earlier by the defendants. Without understanding the said position, the First Appellate Court has committed an error and answered in respect to the liability having by the defendants. 18. In the evidence, DW.1 himself admitted that there is no legal proceedings initiated against the plaintiff on account of supplying inferior quality. Eventhough there was over all evidence let in by the defendants that the lift erected by using the service of some other company, it was not specifically stated on the side of the defendants that the materials supplied by the plaintiff were not used for erecting the lift. 19. The learned counsel appearing for the appellant/plaintiff relied on Ex.A2 and Ex.A3-letters dated 11.08.1998 and 28.08.1998 respectively and submits through the said letter, the defendants admitted the balance amount. Further, he added that the First Appellate Court in its judgment in paragraph-14 has also confirmed the liability of the defendants. Since the defendants sent the letter for erecting the lift only in the year 1998, after admitting the earlier due, the limitation is saved since the bill is ready only in the year 1998. 20. Per contra, the learned counsel appearing for the defendants would contend that as per section 55 of Sale of Goods Act, it is very clear that the claim for sale amount has to be made within a period of three years, even the defendants acknowledged earlier debt, the said acknowledgment was after three years from the date of sale. So, the acknowledgment made by the defendants is no way helpful for the claim made by the plaintiff. 21. So, the acknowledgment made by the defendants is no way helpful for the claim made by the plaintiff. 21. Now, upon going through the submission made on either side, it is necessary to see section 14 of the Limitation Act, 1963, where it was very clear for the price of goods sold and delivered where no fixed period of credit is agreed upon three years is the limitation. Now, as per the case of the plaintiff, the said debt was acknowledged by the defendants only in the year 1998. So, the said acknowledgement is not made within the period of three years. In this regard the defendants did not made any express promise to pay the entire due claimed by the plaintiff. 22. In the said circumstances, it is relevant to see the Judgment of this Court in the case of K.Jeyaraman v. Sundaram Industries Ltd., through the Special Officer, reported in 2008 (4) MLJ 482, wherein it has been observed that section 25(3) of the Contract Act contemplates an express 'promise' on the part of the person making promise and the promise should be unconditional. But in the letter sent by the defendants to the plaintiff discloses that the defendants did not made any express promise. So, it cannot be held that due to the admission made by the defendants, the period of limitation is saved. 23. Further, it is useful and relevant to see the Judgment of the Hon'ble Apex Court reported in the case of Sampuran Singh and others v. Niranjan Kaur and others, reported in AIR 1999 SC 1047 wherein, it has been held as follows: "9. .... Section 18 sub-section (1) itself starts with the words "Where, before the expiration of the prescribed period for a suit or application in respect of any property or right, an acknowledgment of liability in respect of such property or right has been made...." thus, the acknowledgment, if any, has to be prior to the expiration of the prescribed period for filing the suit, in other words, if the limitation has already expired, it would not revive under this Section. It is only during subsistence of a period of limitation, if any, such document is executed, the limitation would be revived afresh from the said date of acknowledgment". 24. It is only during subsistence of a period of limitation, if any, such document is executed, the limitation would be revived afresh from the said date of acknowledgment". 24. Further, in the Judgment of the High Court of Allahabad in the case of Mukat Lal and others v. Gulab Singh Pran Mal, reported in AIR 1931 Allahabad 229, it has been held as follows: "In a simple transaction of sale of goods, the liability to pay the full price accrues on the date of the sale. The fact that the purchaser, not having all the money in his hands, agrees to pay the balance with interest at a certain rate does not prevent the accruing of the vendor's right to recover the whole price on account of the purchase and time begins to run from the date of the sale. Vendor must sue within three years from that date in order to get a personal decree against the purchaser." 25. So, by following the principle laid down in the Judgments cited supra, it is clear that a debt has to be acknowledged within the period of limitation. But in the case on hand, the acknowledgement is not within the period of three years. Moreover, the judgment of Patna High Court in the case of Ramal Mistry and others v. Commissioners of Tekari Municipality, reported in AIR 1961 PATNA 485, it has been held as follows: "7. With respect to the items relating the supply of materials, the court of appeal below has applied Article 52 of the Limitation Act, which provides three year's period of limitation for a suit to recover the price of goods sold and delivered, where no fixed period of credit is agreed from the date of the delivery of the goods. ................ In the present case, however, two different kinds of claims, namely, the claim for materials supplied and the claim for the works done, are separately mentioned as distinct from each other and containing price of each of the materials and separated cost of each of the works done. That case has, therefore no application to the present case." 26. In this case also, as per the invoice, the plaintiff has claimed the amount under two heads, i.e., towards cost of materials as well as the cost of erection charge. That case has, therefore no application to the present case." 26. In this case also, as per the invoice, the plaintiff has claimed the amount under two heads, i.e., towards cost of materials as well as the cost of erection charge. Before the trial Court, the suit has been filed only for recovering the balance due towards the sale of materials. In the said circumstances, the sale was effected and the goods were delivered to the defendants in the year 1991 itself. Thereafter, there is no express and unconditional promise on the side of the defendants. So, even assuming that the acknowledgement given by the defendants is true one, the same was subject to the condition that the plaintiff has to erect the lift. So, the acknowledgement given by the defendants, that too, after seven years, is no way helpful for the claim of the plaintiff. Accordingly, I am of the considered opinion that the suit filed by the plaintiff is barred with limitation and therefore, the findings arrived at by the First Appellate Court does not warrant any interference. Thus, the Substantial Question of Law Nos.2&3 are answered accordingly. 27. In the result, the Second Appeal is dismissed, by confirming the Judgment and Decree, dated 19.12.2008, passed in A.S.No.66 of 2004, by the learned Additional District Court (Fast Track Court), Dindigul in reversing the Judgment and Decree, dated 27.02.2004, passed in O.S.No. 288 of 2001, by the learned Additional Subordinate Judge, Dindigul, However, there shall be no order as to costs.