JUDGMENT : Sathish Ninan, J. The suit for money was dismissed by the trial court. The plaintiff is in appeal. 2. The defendant Kerala State Electricity Board (Board) invited tenders for the supply of concrete poles with the specifications mentioned therein. The plaintiff was the successful bidder. From the year 1985-86 onwards the plaintiff had been supplying the poles as per the stipulations and specifications. Various agreements were executed between the parties, with regard to the same. The allegation of the plaintiff is that the agreement between the parties provided for grant of escalation in the price of goods and transport to be in accordance with the PWD schedule of rates. However, but for granting nominal/minimal revision and that too unilateral, which was much lower than the PWD rates, the plaintiff was not granted the rates entitled for. The suit was filed claiming the amounts alleged to be payable by the Board based on such calculation. 3. The defendants admitted the contract with the plaintiff. It was contended that the supply of poles by the plaintiff was based on separate agreements entered into between the parties. With regard to the claim for escalation of rates, it was contended that the plaintiff was granted the escalation to which it was entitled for, and the plaintiff had accepted such payment. In the year 1997 the Board noticed that the method of calculation that was being adopted with regard to escalation was not correct, and hence directions were issued to rectify the mistake and to recover the excess amounts from the plaintiff. Demands were issued to the plaintiff to refund the excess amounts paid under the wrong calculation. It was contended that the plaintiff is not entitled to any amounts from the defendants. 4. The trial court held :- (i) That the suit is barred by limitation. (ii) That the plaintiff having accepted amounts at the enhanced rates, as granted by the defendants, without any demur, is not entitled to raise any further claim. 5. We have heard Sri. P. B. Subramanyan, the learned counsel for the appellant-plaintiff, and Sri.Raju Joseph, the learned senior counsel on behalf of the respondents-defendants. 6. The correctness of the findings of the trial court, as noticed above, are the points for determination. 7. The trial court held that the suit is barred by limitation. 5. We have heard Sri. P. B. Subramanyan, the learned counsel for the appellant-plaintiff, and Sri.Raju Joseph, the learned senior counsel on behalf of the respondents-defendants. 6. The correctness of the findings of the trial court, as noticed above, are the points for determination. 7. The trial court held that the suit is barred by limitation. At paragraph 15 of the plaint, it was pleaded thus: - “The suit claim is not barred by limitation as the defendants made several on account payments, and as the time will start running only from the day the defendants prepare the final bills, on proper revision of rates according to the PWD rates. A reading of the written statement of the defendants shows that there is no denial or even a reference to the averments in paragraph 15 of the plaint. Of course, Section 3 of the Limitation Act obliges the Court to consider the issue of limitation even if it is not set up as a defence. However, in the present case, not even an issue was raised with regard to limitation. The parties went to trial without any plea or issue of limitation. In spite of the same, the Court has held that the suit is barred by limitation. 8. As contended by the learned counsel for the appellant-plaintiff, if the plaintiff was put on notice that he is required to answer the plea of limitation, it would have been open for the plaintiff to produce documents if any and also raised such contentions as may be available to him, to substantiate that suit is well within the period of limitation. In the light of the specific and uncontroverted plea of the plaintiff regarding limitation and its non-denial in the written statement, and the nature of the transactions involved, we are of the opinion that there is some force in the contention. Limitation is a mixed question of law and facts. Especially in a suit like the present one, it may not be appropriate for the Court to hold that the claim is barred by limitation on the available materials without putting the plaintiff on notice with regard to the issue. We are unable to uphold the finding of the trial court that the suit is barred by limitation. The finding is liable to be set aside, and we do so. 9. We are unable to uphold the finding of the trial court that the suit is barred by limitation. The finding is liable to be set aside, and we do so. 9. Now coming to the merits of the claim, the contention of the defendants essentially is that, the quantum of enhancement granted by the Board was not in dispute by the plaintiff at any stage and the payments made accordingly were accepted without any objection. Thereafter the plaintiff is not entitled to raise any challenge with regard to the rate of enhancement. 10. That the plaintiff is entitled for revision of rates in tune with the PWD schedule of rates, is not disputed by the defendants. In fact they would contend that the plaintiff was granted the benefit of the PWD schedule of rates. At paragraph 10 of the written statement it is stated thus: - “The PWD Schedule of Rates was revised in 1986, 1990, 1992, 1996 and so on. Accordingly applicable price escalations were sanctioned to the petitioners contractor by the Chief Engineer (Ele.) MM vide that office proceedings dated 06.08.1990, 16.12.1991, 06.01.1992 and 05.05.1993.” According to them, there is no provision for granting escalation for transport charges. It is also their contention that there were some errors in the mode of calculation with regard to escalation, which was later rectified. Based on such calculation, the plaintiff has received excess amounts. 11. There is no dispute with regard to the quantity and quality of the supplies made by the plaintiff. According to the plaintiff, the revision in rates was made by the defendants unilaterally and without adhering to the PWD rates. It is the plaintiff's case that, going by the PWD schedule of rates, the plaintiff is entitled to further amounts as detailed in the plaint. Therefore, one of the questions that would arise is whether the rates fixed by the defendants were in accordance with the PWD schedule of rates for the relevant periods. Whether once the payments are accepted by the plaintiff, there could be a further challenge with regard to the rates, is yet another aspect that falls for determination. Escalation is claimed from the year 1986 onwards. The mode of transactions between the parties would be significant while considering the claim. It appears that the contract provided that the escalations, once accepted, cannot be challenged. Escalation is claimed from the year 1986 onwards. The mode of transactions between the parties would be significant while considering the claim. It appears that the contract provided that the escalations, once accepted, cannot be challenged. Therefore the question arises whether the escalation fixed by the defendants was accepted as such by the plaintiff, to deprive them of any further claim under the said head. Here the following observation of the trial court is of relevance. It held “If the dispute was raised in proper time and before accepting the escalation, the claim of the plaintiff would have been considered in a different manner.” Therefore, the conduct of the plaintiff which allegedly evidences acceptance of the escalation granted and without demur, is a relevant aspect. 12. Admittedly, the final bill was not drawn, and the account is not finally settled. The trial court at paragraph 18 of the judgment observed: - “There is no dispute regarding the fact that the final bill was not drawn and the account was not settled so far. As contended by the plaintiff it is stated by DW1 that for drawing the final bill it is necessary to verify the measurement books kept by officers of the KSEB in the plaintiff firm.” Therefore, the nature of the transactions between the parties, whether they were treated as a single whole or as separate transactions, etc., assumes significance. This would also be relevant when considering the issue of limitation. 13. It is seen that the above aspects had not gone into the zone of consideration of the trial court. We deem it only appropriate to give opportunity to both parties to re-agitate the cause. The parties could be permitted to amend their pleadings and to adduce further evidence. In the result, the appeal is allowed. The decree and judgment of the trial court are set aside. The suit is remanded back to the trial court for disposal denovo. It is clarified that all rival contentions are left open. The court fee paid on the memorandum of appeal shall be refunded to the appellant. Parties to appear before the trial court on 20.03.2025.