1987 PLP 1954 (CLC)

Syed Hamait Ali Shah, Attorney for Appellant. Respondent in person. Date of hearing: 17th Feburary, 1987. This petition was filed on 5th of June, 1986 by the State Bank of Pakistan, the official liquidator of R.B. Kidar Nath & Sons Bank Limited (in liquidation) for a direction to the respondents to pay Rs.38,488/18 inclusive of interest at the rate of 9$ per annum outstanding upto 31‑5‑1986 together with future interest till the date of payment of the amount due.

2. The case of the petitioner is that Muhammad Yousaf, respondent, was indebted to the Bank to the tune of Rs.1,431.59 with interest @ 9$ per annum on 1‑8‑1947 and out of the amount due the respondent made payment of Rs.260 only through instalments during the period from 1958 to 1961 but thereafter, despite demands made the liability was not discharged. The documents placed on record by the petitioner are as follows: ‑ (i) Calculation sheets showing payment of Rs.260 in instalments of Rs.20 each from 1958 to 1961; (ii) 9 letters of Habib Bank regarding payment of instalments; (iii) Letter of Habib Bank to respondent demanding payment of instalment and (iv) Letter dated 10‑10‑1962 purportedly signed by Muhammad Yousaf, respondent, acknowledging debt and undertaking to pay the instalments. The loan was originally obtained by M/s. Khushi Muhammad and Sons through Khushi Muhammad its proprietor. The loan was secured by deposit of title deeds of two houses owned by Khushi Muhammad. There are also on record of the official liquidator acknowledgment- receipts acknowledging the balance outstanding in the account of the firm. The last of such acknowledgment receipt is dated 22nd March, 1947.

3. The petition was resisted by Muhammad Ilyas son of Muhammad Yaqoob and Muhammad Tabasum Munir son of Muhammad Yousaf, the two grandsons of Khushi Muhammad. They stated that they are not aware of the loan alleged to have been obtained by their grandfather; that no demand was ever made from them; that in any case the claim made was barred by time and that the official liquidator be not allowed interest as the petition suffers from laches and inordinate delay.

4. I have considered the respective pleas of the parties and have also gone through the record. The plea that fresh cause of action accrued to the petitioner on account of the acknowledgment in writing and premise to pay is not available as the letter dated 10‑10‑1962 purportedly written and signed by Muhammad Yousaf was not proved to have been written and signed by him by producing any evidence whatsoever. Learned counsel for the petitioner also relied upon the acknowledgment receipts executed by Khushi Muhammad from time to time. The last of such a receipt acknowledging the amount due as Rs.230/6/9 (Rupees two hundred thirty, six annas and 9 pies was purportedly signed on 22‑3‑1947. The balance payable on 1‑8‑1947 as stated in the petition was Rs.1,431.59 only. The' question is whether the claim in question has become barred by time and is as such not enforceable. It is not disputed that under Article 132 of the Limitation Act, the period of limitation for a suit for the recovery of mortgage amount is 12 years from the date the amount became payable and had fallen due. The mortgage money becomes due in the absence of stipulation in the mortgage deed, the moment the debt was incurred and the deed was executed (See Patukhali Bank Ltd. v. Muhammad Emdad Ali, P L D 1964 Dacca 36). In this case A the mortgage was created by deposit of title deeds on 1st of February, 1936 and as no time was specified for payment and the mortgagor was entitled to pay the loan at any time the limitation started running at once on the execution of the deed of deposit of title deeds. The limitation period of 12 years was thus to expire on 1st of February, 1984.

5. The next question that arise is whether the acknowledgment dated 22‑3‑1947 had the effect of enlarging the period of limitation and if so what is the effect of payments made during the period commencing from 16‑10‑1959 to October, 1961. In the written acknowledgments available on record, the balance, outstanding on particular dates was acknowledged without any reference to the mortgage or the securities offered. It is well‑established that an admission by a mortgagor of his liability under the mortgage carries with in an admission of all the remedies to which the mortgagee might be entitled under it, See Ram Autar v. Beni Singh, (1922) 68 I.C. 196 (Oudh). Again a promise to pay the mortgatge debt referring to the mortgage is a sufficient acknowledgment of the existence of the relation of mortgagor and mortgagee and is, therefore, acknowledgment of the mortgagee's title. In the instant case there was no reference to the mortgage in the acknowledgment dated 22nd March, 1947. Such an acknowledgment simplicitor does not have the effect of extending limitation under section 19 of Limitation Act, 1908. In this view of the matter, the period of limitation expired by 1st of February, 1948. If the acknowledgment dated 22‑3‑1947 is treated as acknowledgement of amount outstanding in the overdraft account, then the period of 3 years expired in August, 1951 as the amount was outstanding in the account since 1st August, 1947.

5. Now the effect of the payments made during the period of three years from 1959 to 1961 may be determined. In this respect, the observation made in the case of, Tripura Modern Bank Limited v. Islam Khan, P L D 1970 Dacca 724, may be referred to. It was held that where defendant took overdraft from plaintiff Bank by deposit of title deeds by way of equitable mortgage and the defendant made deposits with the Bank towards the loan advanced, such deposits would attract the provisions of section 10 giving rise to fresh period of limitation from the date of last deposit. But the payment on account of a debt to be operative under section 20 of Limitation Act, 1908 must be made before limitation for the suit or application has fully run out. This is apparent from the very wording of section 20 of the Limitation Act, the same view was taken in Rishi Kishan v. Krishno Kumar, A I R 1940 Oudh 340 (F.B.); Cheeda v. Baldeo, A I R 1949 All. 746; Girm Kamta Presad Jhanganath v . Gulzari Lal A I R 1954 All 41 (F.B.) and Sant Lal v. Kamal Parsad, A I R 1951 SC

477. It is, therefore, apparent that payments made after expiry of period of limitation do not have the effect of extending limitation.

6. Assuming that the acknowledgment dated 22‑3‑1947 had the effect of extending limitation and furnishing fresh cause of action, still the period of limitation would have expired by 22nd March, 1959. The first payment was allegedly made on 16th October, 1959, much after expiry of the period of limitation. In any case, it is obvious that the period of limitation expired before the coming into force of the Banking Companies Ordinance, 1962. Therefore, sections 61 and 63 of the Banking Companies Ordinance, 1962 were inapplicable to the claim in dispute which had already become barred by time. This was so held in, Punjab Commerce Bank Ltd. v. Maqbool Elahi, PLD 1970 Lah. 486 as well.

7. For the reasons given above, the direction prayed for cannot be made. This petition is dismissed with no order as to costs. A.A. /S.63/L Petition dismissed.