2007 PLP 1478 (CLD)

SYED ASGHAR HAIDER, J.

This appeal is directed against the judgment and decree dated 1-6-2002, passed by the Banking Court-II, Lahore.

2. The plaintiffs/respondents filed a suit for recovery of Rs.27,54,660 with costs etc. against the appellants/defendants and Messrs Rachna Oil (Pvt.) Ltd. pleading that the defendant company approached the plaintiff for installation of a factory, pursuant thereto, a lease agreement for a sum of Rs.39,10;000 was executed. Rental was settled as Rs. 1,33,010 p.m. and was required to be liquidated in 36 consecutive monthly instalments. Defendant No.1 (Messrs Rachna Oils (Pvt.) Ltd.) was wound up by the order of this Court, thereafter permission was obtained by the plaintiff to recover the stated amount from the guarantors/appellants/defendants Nos.2 and 3 the present suit was filed against the defendants/appellants.

3. The appellants/defendants filed application for leave, inter alia, raising a number of objections qua the execution of documents etc. and also specifically pleading that, suit was barred by afflux of time and not maintainable.

4. After considering the contentions of the parties, the leave application was dismissed and thereafter the suit decreed against the appellants/defendants Nos.2 and 3 in the sum of Rs.27, 54,660, hence the present appeal. 4A. Learned counsel for the appellants contended that question of limitation is a mixed question of law and fact, the appellants specifically adverted to the documents appended with the plaint and pleaded that default accrued in March, 1996, for the first time and thereafter in August, 1997, while the suit was filed in November, 2000, clearly beyond the period of limitation prescribed by law (three years). The Banking Court, however, proceeded to treat this question in a very cursory manner and merely observed that the suit filed by the plaintiffs is within time without adverting to any material in this context, or noting the arguments made. Conversely the learned counsel for the respondent vociferously controverted the assertions and pleaded that the suit is within time, the appellants have not denied that they are guarantors, therefore, the leave application was rightly dismissed.

5. We have heard the learned counsel for the parties and perused the impugned judgment. The leave application filed by the appellants under section 10 of the Ordinance, clearly reflects that the question of limitation was specifically pleaded. The impugned judgment also note that the question of limitation was duly urged. However, it was not adequately answered, the contentions raised by the parties were not addressed, there also is no basis for holding as to how the suit is within limitation.

6. The question of limitation is a mixed question of law and fact and, therefore, has to be decided, after pursuing material evidence in this context. On the touchstone of the legal proposition stated, the impugned judgment cannot sustain. Therefore, this appeal is allowed, the impugned judgment and decree is set aside, the appellants are granted leave, conditional, to the deposit of the due outstanding rentals in the sum of Rs.10,09,626 within one month. The parties to appear before the concerned Banking Court on 3rd September, 2007. M.H./Z-45/L Appeal allowed.