1990 PLP 1704 (MLD)

Gurdinomal Chandumal and others v. Usto Muhammad Hayat and others A I R 1943 Sindh 26 ref. Shah Maqsood Ahmed for Appellant. Khalilur Rehman for Respondent. Date of hearing: 1st February, 1990. . M/s. Pakistan Industrial Development Corporation (Pvt.) Limited, the respondents herein, had appointed M/s. F. Rehman and Company, the appellants herein, as their clearing, forwarding and shipping agents in respect of consignments imported by them. During the course of their business certain amounts fell due and payable by the respondents. The appellants forwarded their bills to the respondents for payment. The respondents on 19‑7‑1983 instead of making the payment of the bills sent by the appellants, claimed that an amount of Rs.2,19,366.55 be refunded to them on account of octroi deposits. The appellants then by their letter dated 21‑7‑1983 provided the respondents with all details of the bills sent to them. The respondents reduced their demand to Rs. 56,507.80. Such correspondence led to a meeting between the parties held on 2‑3‑1984 when the bills were settled. The appellants, however, remained silent for a period of over two years and on 5‑11‑1986 demanded payment of Rs.60,681.70. The respondents did not pay them the amount demanded with the result that appellants ultimately on 19‑10‑1987 filed a suit in the Court of Senior Civil Judge, Karachi (South) for recovery of such amount. Their suit was registered as Suit No. 1901 of 1987 in that Court.

2. The defendants in the suit (the respondents herein) filed an application under Order V11 rule 11 Civil Procedure Code alongwith their written statement seeking rejection of the plaint on the ground that the suit was barred by haw of limitation. Ultimately, the V11th Senior Civil Judge, Karachi (South) after hearing the parties passed an order on 30th March. 1988 rejecting the plaint under Order VII rule 11, (d) Civil Procedure Code. The order was followed by the decree drawn on 25‑4‑1988.

3. Being aggrieved by the order and, decree referred to in the preceding paragraph M/s F. Rehman and Company have filed the present First Appeal.

4. Mr. Shah Maqsood Ahmed, the Advocate for the appellants contended that according to the facts stated in the plaint, Article 88 to the First Schedule of the Limitation Act, 1908 would be applicable and the period for filing the suit will run from a date when the amount due was demanded. In the instant case, according to him, the amount was finally demanded on 5‑11‑1986 and in spite of the demand, no payment was made by the respondents. A period of three years is to be calculated from 5‑11‑1986 and the suit as filed was within time. 4‑A. Mr. Khalilur Rehman, the Advocate for the respondents argued that either Article 56 or Article 85 of the Limitation Act this be attracted for the purposes of computation of the period of limitation in this case and under both the Articles the suit is filed beyond the period of limitation. He, therefor, supported the order passed by the trial Judge.

5. The contentions raised by Mr. Shah Maqsood Ahmed, Advocate for the appellant that Article 88 of First Schedule of the Limitation Act will be applicable in the case has no force. Article 88 will apply when a suit is filed against the factor for an account. Expression "factor" according to Legal Thesaurus means, "agent, broker, commercial agent etc." In this case admittedly the plaintiffs were the agents of the respondents. Article 88 can only be attracted when the suit is filed by the principal against his agent. Similarly, Articles 89 and 90 of the Limitation Act will also have application only when the suit is filed by the principal. Articles 88, 89 and 90 of First Schedule to the Limitation Act, 1908 contain special provisions applicable to suits filed by the principals against their agents only. Such, Articles can never be pressed in service in suits by the agents against the, principals as in this case.

6. It can very conveniently be gathered from the facts stated in the plaint in the instant suit that the plaintiffs had based their suit on open, mutual and current account where the account was sorted out and settled between the parties on. 2‑3‑1984 and suit was filed on 19‑10‑1987. Article 85 in the in the Limitation Act would be applicable in view of the fasts mentioned in the plaint. Settlement of account, applied according to para 3 of the plaint tool: place on 2‑3‑1984. The period of limitation as provided by Article 85 of the Limitation Act will run from the last date of the of the appellants after acknowledging such amount. In normal accounting year taking such a view of the pies, it case, I am supported by the decision in the case of Gurdinomal Chandumal and others v. Usto Mohammed Hayat and others reported in AIR (30) 1943 Sind

26. The appellants (plaintiffs) in this case have deliberately committed to mention the last date when they normally close their accounts and have instead indicated that cause of action took place on 5‑11‑1986 when they addressed a letter to the respondents demanding payment. A right to sue under Article 85 of the Limitation Act cannot be extended in a case where a period of three years calculated from the last date C plaintiff omits to sue within p of accounting period as provided thereby only by resorting to address a letter of demand on all later date. As held in case referred to hereinabove such period I cannot be extended by even making payment of some amount out of the demanded sum. The period of limitation in this case will run from the last date of accounting period of the plaintiffs after 2‑3‑1984 as provided by Article 85 of First Schedule of the Limitation Act, 1908. Such date has not been mentioned in the plaint.

7. In view of above as the trial Judge has not based his finding on proper appreciation of the facts mentioned in the plaint, I set aside the order impugned in this appeal and allow the appeal with no order as to costs with a direction that the trial Judge shall settle the issues including the issue touching limitation, treat the issue of limitation as the preliminary issue, record evidence and decide accordingly. M.BA./F‑133/K Appeal allowed.