P L D 2003 Karachi 598 (PLP)

(f) Civil Procedure Code (V of 1908)

O. VII, R.2

Limitation Act (IX of 1908), S.20

Suit for recovery of money

Plaintiff seeking extension in period of limitation on the basis of Fax Message of the defendant claiming that the said Fax Message was an acknowledgment of the liability on behalf of the defendants

Fax Message in question was in reply to Fax Message of plaintiff wherein plaintiff had alleged that the defendants agreed to provide payment schedule and in reply to the same defendants without acknowledging liability had just stated that they were in the process of checking their record

Such message from the defendants could not be termed as an acknowledgment of the liability. (g) Civil Procedure Code (V of 1908)

O. VII, R.2

Limitation Act (IX of 1908), Art.62

Suit for recovery of money

Sale of goods by the plaintiff

Limitation

Article 62 of the Limitation Act, 1908 provides period of three years in respect of price of goods sold and delivered where no fixed period of credit was agreed upon--?Period of limitation runs from the date of delivery of the goods--?Acknowledgment after expiry of limitation did not give fresh cause of action or extended the period of limitation of the same. Sibtain Mahmood for Plaintiff. Nemo for Defendant. Date of hearing: 12th September, 2002. The plaintiff filed suit for recovery of Rs.806,222.51 with mark-up at the rate of 20% from the date of filing of suit till realization being the price of tannery chemicals supplied to defendant. Brief facts, as narrated in the plaint, are that the defendant approached the plaintiff for supply of tannery chemicals on the condition that it will make the payment after receiving the goods and or invoices. Plaintiff further stated that the defendant agreed to the said terms for which several invoices were raised and the goods were delivered to the defendant against it. The plaintiff stated that on 10-3-1994 on account of defendant a sum of Rs.806,222.51 was due and outstanding against the defendant. It is stated that on 13-8-1995, the defendant acknowledged its debts and made payment of Rs.50,000 by cheque dated 10-8-1995 and the said cheque on its presentation was dishonoured. The plaintiff approached the defendant through various fax messages to pay off its liability and then served legal notice on 20-5-1998. After service of summon Mr. Agha Faqir Muhammad, Advocate filed Vakalatnama on behalf of the defendant on 16-12-1998 and since defendant failed to file written statement, by order dated 30-11-2000 the defendant was ordered to proceed ex parte. The plaintiff filed affidavit in ex parte proof alongwith various documents in support of its claim. I have gone through affidavit and the documents filed with the plaint. Heard Mr. Sibtain Mahmood, learned counsel for the plaintiff. It appears from the delivery orders marked as Exhs. P. W.1/1 to P.W.1/23 that various consignments of different brands were delivered to the defendant between 23-11-1993 to 9-3-1994. As per plaintiff's own case that the defendant was liable to pay price of each consignment on receiving the said consignment and or on receiving the invoices of the same. This is an ex parte case and as such while deciding the same heavy burden lies on advocate appearing for plaintiff and on Court to see, that no injustice be done to un represented party. The provisions of Order VIII, rule 10, C.P.C. are not mandatory in the sense giving no option to the Court except to pass a judgment in favour of the plaintiff. If a written statement is not filed, rule 10 of Order VIII, C.P.C. does not postulate a judgment to be pronounced and decree be passed automatically or mechanically. The judgment pronounced under rule 10, Order VIII, C.P.C. should indicate that the Court has applied its mind to the merits of the case before decreeing the suit. It is for the plaintiff to prove his case. It is the duty of the Court to see as to whether the suit is filed within time or not. In the case of Muhammad Akram v. Mst. Pathani and others 2001 MLD 1037, my Lord Mr. Justice Anwar Zaheer Jamali held that section 3 of the Limitation Act casts a duty upon the Court to examine the question of limitation irrespective of the fact whether such plea has been raised by a party in his pleadings or not. Where a quantity of goods of the same kind is deliverable in instalments, such a contract is called an "instalment contract"; and if the price is payable in corresponding instalments, the contract is properly called divisible though it remains one and an entire contract. The question ?whether a contract be an entire contract or divisible into several contracts depends upon the intention of the parties and the circumstances of the case. The plaintiff's own case is that defendant had to pay for the consignment of each delivery established that each delivery of consignment have independent bargains and independent contract gives cause for receiving of price of each consignment on the date of delivery. However, the plaintiff can join all its causes of action in one suit but same will not in any manner enlarge period of limitation for payment of price of consignment which runs from the date of delivery of consignment. The plaintiff produced invoices of goods delivered vide Exhs.P.W.1/1 to P.W.1/23 as Exhs.P.W.1/24 to P.W.1/48 and all were dated from 24-11-1993 to 10-3-1994, whereas this suit has been filed on 13-8-1998. The plaintiff stated that limitation for filing the suit is extended as the defendant admitted his liability and paid a sum of Rs.50,000 through cheque in respect of Invoices Nos. 10498 and 10499 dated 24-11-1993. When the attention of the learned counsel was drawn to the said invoices, he admitted that these invoices are not of the amount shown in Annexure A-8 filed with the plaint. Even otherwise at best it can be acknowledgement in respect of only those two invoices and not in respect of the other invoices which became due and payable on the date of delivery of the goods. For the, purposes of seeking fresh period of limitation from the date of issuance of cheques under section 20 of the Limitation Act the plaintiff ought to have established that the said cheque has been issued on account of debt. The plaintiff failed to establish that the cheque of Rs.50,000 dated 10-8-1995 has been issued as an acknowledgement of debt in respect of all invoices, however, as per plaintiff's own case same was issued in respect of Invoices Nos. 10498 and 10499. The value of these invoices are Rs.24,524.31 and Rs.93,171.90 respectively. The plaintiff seeks extension in period of limitation on the basis of fax message of the defendant dated 30-5-1997, claiming that the said fax message is an acknowledgement of the liability on behalf of the defendant. I have gone through the fax message dated 30-5-1997 (Exh.P.W.1/55) and same was in reply to fax message of plaintiff dated 8-5-1997 (Exh.P.W.1/54). In the fax message of the plaintiff it is alleged that the defendant, agreed to provide payment schedule and in reply to said fax message defendant did not acknowledge liability and just stated that they are in the process of checking their record and as such Exh.P.W.1/55 cannot be termed as an acknowledgement of the liability. Even otherwise as I have held that each invoice and delivery order is independent cause of action and the last invoice is dated 10-3-1994, whereas Exh.P.W.1/55 is dated 30-5-1997, i.e. after expiry of the limitation period. Article 62 of the Limitation Act provides period of three years in respect of price of goods sold and delivered where no fix period of credit was agreed upon. The period of limitation runs from the date of delivery of the goods. An acknowledgement after expiry of limitation did not give fresh cause of action or extend the period of limitation of the same. The suit has been filed on 13-8-1998 and the same, on the face of it, is barred by time in respect of invoices Exhs.P.W.1/28 to P.W.1/48. Consequently, I decree the suit for Rs.117,696.21 with mark-up @ 20% per annum from the date of suit till realization with no order as to costs. M.B.A./B-80/K?????????????????????????????????????????????????????????????????????????????????? Order accordingly.