2006 PLP 1540 (CLD)

Instant appeal arises out of the judgment dated 13-3-2006, whereby the learned Banking Court No.V at Karachi dismissed the Suit bearing No.833 of 2003 filed by the plaintiff-Bank against the respondent, Mohsin Baig on the ground of limitation. It is contended by, the learned counsel that the suit was very much in time in terms of section 19 of the Limitation Act. It is contended that acknowledgment of the liability was made by the counsel of the respondent through Reply dated 17-11-2001 within the period of limitation from the last acknowledgment made earlier on 14-12-1998. It was urged that such acknowledgment was available on record which was not considered while arriving at an erroneous conclusion. Notices were directed to be issued to the respondent which have been served but the respondent has not bothered to appear in Court today. It is further contended by the learned counsel that leave to defend application was filed by the respondent which was also dismissed as he was not pursuing the matter before the learned trial Court and the matter was in fact proceeded ex parte and ex parte proof was filed before the learned trial Court along with all the documents including the letter referred to above. We have examined the record and such letters are available on record. Effect of acknowledgment in writing is clearly spelled out in section 19 of the Limitation Act. It is provided that where before the expiry of limitation as may be prescribed an acknowledgment of liability is made in writing signed by the party or by some other person through whom he derives title or liability, a fresh period of limitation shall be computed from the time when the acknowledgment was so made. The only rider is that the acknowledgment should be made during the period of limitation. In the instant case, from the record, it appears that instant suit was filed on 28-10-2003 on the basis of acknowledgment dated 17-11-2001. The earlier acknowledgment was made on 14-12-1998 and before limitation expire another acknowledgment dated 17-11-2001 was made and liability was acknowledged by the counsel of the respondent. In the circumstances, the suit filed on 28-10-2003 is well within limitation. Therefore, the conclusion drawn by the learned trial Court on the face of record cannot be sustained. In consequence, the appeal is accordingly allowed, the order of Banking Court is set aside. Since the suit has been dismissed on the point of limitation only whereas no fault has been found in claim and the accounting while leave to defend application of the respondent under section 10 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 had already been dismissed. As per calculation of the Banking Court the claim of the bank comes to Rs.84,730.90, therefore, we decree the suit in the said sum from the date of institution of the suit with agreed interest between the parties till realization of the amount. The suit referred to above stands decreed in above terms. H.B.T./M-128/K Suit decreed.