1993 PLP 104 (MLD)

According to the defendant No.1, thereafter things were quiet until May 1984 when one Major Gill attached to the Headquarters of the Deputy Martial Law Administrator, Karachi summoned him and pressurised him to execute a fresh promissory note. This event has been narrated by the defendant in his affidavit? in‑evidence in the following words: ‑‑ "Major Gill told me that I have to sign a fresh promissory note or I have to face arrest because there were clear instructions of the Chief 'Martial Law Administrator in that regard. I knew that the plaintiff in collusion with Martial Law Authorities had again staged a new drama in the name of the Chief Martial Law Administrator to terrorise me and obtain a fresh promissory note as the first promissory note obtained by Major Niazi had become void." ??? It was then that he wrote the letter dated 12‑5‑1984 being Exh.5/18, to the Deputy Martial Law Administrator bringing to his notice the high‑handedness of the officers. His contention was that his letter (Exh.5/18) did not constitute acknowledgement under section 19 of the Limitation Act, as, in the said letter there was no express admission of liability and the admission relating to the execution of the promissory note was subject to the condition that the defendant had suffered loss due to breach of agreement by the, plaintiff and that the promissory note had been obtained under coercion. It is true that the amount of Rs.3,71,728 is not mentioned in the said letter but the execution of the promissory note is admitted though of course such admission is qualified by two important conditions, namely, a claim for damages arising out of breach of agreement by plaintiff and an allegation that the promissory note was obtained under coercion. Claim for damages, would at best amount to a claim for set‑off and therefore in view of Explanation I to section 19 of the Limitation Act such claim would not alter the nature of the document if otherwise it is found to be an acknowledgement for purposes of the said section. As the very validity of the promissory note (Exh.5/17) has been called into question by the defendants it will be appropriate to deal with that first. It would appear from the written statement and the evidence of the defendants that they had throughout been asserting coercion and undue influence in the execution of the promissory note. In para.13 of the written statement it has been stated that, "Major Muhammad Aziz Khan Niazi of the said Headquarters under coercion, harassment, and threat of arrest obtained from the defendants a promissory note and a schedule of payment. The impugned promissory note obtained was without consideration." In para.14 the defendants state that, "the impugned promissory note dated 29‑6‑1981 was obtained by the Martial Law Authorities who meted out an inhuman and atrocious onslaught on the defendant. The promissory note is also signed by one Major Muhammad Aziz Khan Niazi attached to the Headquarters of the Deputy Martial Law Administrator, Karachi, which speaks volumes about the nature of the promissory note. It was obtained under coercion and influence with the threat that the defendant would be sent to jail and even to torture camp if he did not sign the promissory note". As is apparent from the portions of defendant's affidavit‑in‑evidence reproduced earlier that in the evidence too the defendant No.1 repeatedly affirmed that the promissory note had been obtained from him by the Martial Law Authorities under coercion and threat. At one place of his affidavit in evidence he stated that, "All along the actions taken by the plaintiff had been immoral, fraudulent and illegal which were cot befitting to a defence organisation like Pakistan Defence Officers Housing Authority. The plaintiff by involving the Martial Law Administration in its illegal acts had also defamed the institution of the Armed Forces of Pakistan. The plaintiff and the Martial Law Authorities had forced me to accept a liability which I did not owe. I was afraid of them and avoided to antagonise them by writing the facts as they may involve me in a false case and get me arrested. Ultimately when I was dejected I took a bold step and brought the facts before the higher authorities. I did not owe any money to the plaintiff nor out of my free will I admitted the liability at any time. The plaintiff had caused me a loss of more than ten lacs. The Martial Law Authorities had obtained the promissory note under coercion." The defendant remained firm in maintaining these assertions in his cross‑examination. He stated that: ‑‑ "It is not true that I issued promissory note in favour of the plaintiff in consideration of money which I owed to the plaintiff. It was, in fact, issued under coercion. It is correct that in May 1984 I was called by the Martial Law Authorities and told that the dispute between the parties was a civil matter and that the Martial Law Authorities had nothing to do with it. Q. Why did you not take any legal action to have the promissory note cancelled after you were told by the Martial Law Authorities that they had nothing to do with the dispute between the parties? A. I did not do so because I was under the impression that the promissory note had become void because Colonel had told me that no action has been taken against me." As against the defendant' unwavering stand, as is evident from portions of the written statement and deposition of the defendant No.1 reproduced hereinabove, the plaintiff's evidence on the point, is almost non?existent and the assertions of the defendant have gone unrebutted. The only witness examined by the plaintiff was Masood-ul-Haq. In his examination‑in? chief the witness had admitted that, "The plaintiff therefore, approached the Martial Law Authorities as they were conducting the arbitration cases in respect of Government dues". This witness was admittedly not in the employment of the plaintiff at the material time and he admitted that he was giving the evidence on the basis of the records produced in Court. With regard to the promissory note (Exh.5/17) this witness stated in his cross‑examination that, "It is correct that Exh.5/17 was executed at the Headquarters of Deputy Martial Law Administrator. Notary Public has attested this document later on. It is correct that you were not present before the Notary Public when it was got attested by us". He has denied that the promissory note was obtained under coercion. He states that "It‑is incorrect to say that Exh.5/17 was obtained from you under coercion". However, this denial is of no effect for the witness admits that, "I did not personally attend any proceedings before the Martial Law Authorities with regard to this dispute". The facts that the plaintiff addressed its communication dated 24‑3‑1981 (Exh.5/16) to the Headquarters DMLA requesting that the case for recovery from the defendants may be handled by the Martial Law Authorities and on the basis of this the Martial Law Authorities summoned the defendant No.1 and during the course of proceedings there the promissory note was executed, would lend support to defendant's contention that the same was obtained under threat and undue influence, all the more, when Exh.5/16 was signed by the Administrator of the plaintiff, who happened to be a senior serving officer of the rank of Brigadier. It is important that, while the defendants took this plea of coercion at the very outset, in their written statement and persistently stuck to it, the plaintiff made no attempt to repel the same. The witness examined by the plaintiff was a person who had no knowledge of what transpired before the Martial Law Authorities. What this witness stated in his examination‑in‑chief on this aspect of the case is briefly mentioned above and may be reproduced here: "The plaintiff therefore, approached Martial Law Authorities as they were conducting the arbitration cases in respect of Government dues. We filed claim before the Martial Law Authorities in the sum of Rs.4,20,028 (Rupees four lacs, twenty thousand and twenty‑eight only). I produce the claim filed before the Martial Law Authorities as Exh.5/16. Defendant No.1 executed a promissory Note which I produce. It is marked as Exh.5/17." It was not for the first time that the defendant No.1 had in the written statement, alleged that the promissory note had been obtained from him under coercion and threat, but, earlier too, as far back as in May 1984, much prior to the filing of the present suit, the defendant had alleged in his letter dated 12‑5‑1984 (Exh.5/18) that the promissory note had been obtained by one Major Niazi under coercion. Although a copy of this letter was endorsed to the plaintiff and apparently was also received by, it, for Exh.5/16 was produced by its witness yet no reply to that letter appears to have been sent denying the serious allegation of coercion. That the promissory note was got attested by a Major attached to the Martial Law Headquarters is also not without significance. Apparently this was done to keep the pressure on the defendant, for otherwise, had the promissory note been executed by the defendant voluntarily, in the normal course, there would hardly been any question of its attestation by the officer or the notary public. Plaintiff's counsel's contention that the proceedings before the Martial Law Authorities were competently taken by virtue of the above‑referred MLO 10 would appear to be devoid of force for more than one reason. In the first place it is clear from the said MLO that it related only to those cases of outstanding taxes and dues which were payable to Government or any local body or authority at the time the said MLO was issued and accordingly by the said MLO the parties were required to pay the same by 15th August 1977. Admittedly, no amount was payable by the defendant to the plaintiff till 15‑8‑1977. Secondly, the word `payable' used in the said MLO would, in my view, mean legally payable and not just a claim by one person which is denied by the other. Thirdly, even in respect of cases covered by the said MLO the jurisdiction to try these was vested with the Military Courts and not the officers attached to Martial Law Headquarters. Taking into consideration the various aspects discussed above, I am of the view that the plaintiff got the defendant No.1 to execute the said promissory note (Exh.5/17) under the pressure, threat and undue influence brought about through the officer attached with Martial Law Authorities and that the execution of the said promissory note (Exh.5/17) was not with the free consent of the defendant No.1. Coming now to the question of limitation there is no dispute that, but for defendant's letter dated 12‑5‑1984 (Exh.5/18) plaintiff's suit would be barred by time. Therefore in order to determine the effect of this letter it needs to be closely examined. The said letter reads as follows: ‑‑ "Deputy Martial Law Administrator, ?Sector‑1, M.PAs.' Hostel, Karachi. Dear Sir, I beg to state that on the 4th of this month Major War Hussain Gill called me to your headquarters and told me that the CMLA has directed to realise the dues that I owe to the Defence Officers Co?operative Housing Society Ltd, and as such I should at once arrange to pay the same. He then instructed me to call on him on 8‑5‑1984. Accordingly I called on him as scheduled and Lt-Col (Retd.) Nazar of Defence Housing Authority was also present. I was given two alternatives i.e. either I sign the Promissory Note or face arrest. I preferred to sign the Promissory Note as any other person would have done in the circumstances. Major War Hussain Gill then told me to go to the adjacent room with Lt: Col. (Retd.) Nazar and execute the necessary Promissory Note. On that Lt.‑Col. (Retd.) Nazar for reasons best known to him, proposed that Mr. Rahman will himself prepare the necessary promissory note and deliver it. I was supposed to deliver the said promissory note on 10‑5‑1984. By continuous mental strain I was so much shattered that I was not in a position to call on him on 10‑5‑1984 and as such I sent a telegram requesting him to allow me time and informed him that a letter will follow. Please note that I am not keeping good health for quite sometime. The matter relates to mobilisation advance in respect of a contract awarded to me and the Society had obtained a Mobilisation Bond (Annexure `A') on 22‑5‑1978 according to which the Society will recover the amount paid towards advances by deducting 20% of the each running bill and if I fail to carry out the work allocated to me as per the practice, the surety shall pay to the Society such sums that were outstanding against me at that time. I was allowed to work till the end of November 1978 and the bills submitted by me for the work done during the past eight months were not paid as per the terms and conditions agreed upon. I continued the job in good faith. In the month of December, the Society for reasons best known to it suspended my job by distributing the delivery orders to contractors and thereafter called tenders for the job I was doing and thereby cancelled my job without any justification and thereby caused heavy damages to me. ?????????? The Society vide Letter No.PD‑4012 dated 15‑5‑1979 (Annexure `B') asked the surety to reimburse to the Society a sum of Rs. three lacs and fifty thousand only. By the said letter and the subsequent letter the Society sent to the surety, the Society itself committed that the default and the breach of contract was caused by the Society itself and thereby relieved the surety by its obligation towards the Mobilisation Bond. The Society knew full well that it had no cause of action and as such it avoided sueing me and the surety in a Court of proper jurisdiction which was the only course open to them in the circumstances. Thereupon the Society took the law in its own hands and started preasuring me by unlawful means. It advertised in the news media, sent a Notice No.PD/SC/TA/012/5 dated 8‑11‑1979 (Annexure `C') making false allegations and threatening to report the matter to Martial Law Authorities informed the Police (S. H. O. Defence Housing Society) vide Letter No.PD/SC/TA/012/75 dated 12‑12‑1979 (Annexure `D') and thereby put me to physical inconveniences, caused mental torture and agony and also caused un reparable damages. On 8‑2‑1982 Major Muhammad Aziz Khan Niazi of your Headquarters had also called me in the same matter and subsequently under coercion had obtained from me a Promissory Note and a schedule of payment. He was continuously pressing me to pay as per the schedule of payment. Thereafter, on representation of mine the said Major Niazi called me to your Headquarters and took me to a Lt: Col. who told me that the entire matter was studied and since the matter relates' to business transactions, the petition of the Defence Housing Authority has been rejected and the case was finally closed. Please note that in‑spite of my repeated requests I was not supplied with a copy of the complaint lodged by the Defence Housing Authority. Since the Society had already informed the Police (S.H.O., Defence Housing Society) the only lawful course, if any, open was complaint. The Society knew that it was purely a civil matter and as such it kept quiet in the matter. I am sure that the Defence Housing Society had suppressed that fact i.e. a complaint was already lodged with the police and the complaint was not entertained as the matter relates to contracts, advances. Had that been the case, I am sure your Headquarters would have rejected the complaint outright. Now after about two years I am confronted with the same matter again and which was already considered and rejected by your Headquarters. I am certain that the Defence Housing Authority has misplaced or concealed the facts from the C.M.L.A., otherwise the CMLA. would have not directed to entertain a case which has already been barred about two years back under the law of the land, and moreover it relates to civil matters. In the name of equity and justice, I request you to kindly let me have the reference of the directives of the CMLA and enable me to represent my case and place the facts before him to reconsider the matter. In the meantime the matter may kindly be kept in abeyance. If you still think that I have to execute a fresh Promissory Note, please let me know and I shall send the same, because my health does not permit to undergo further humiliations. I am lodging a complaint with Wafaqi Mohtasib (Ombudsman) against Defence Housing Authority in the matter. Thanking you and expecting an early reply because I want to be relieved of the pressure under which I am passing these days. Yours faithfully (Sd.) " As is apparent, in the above letter the defendant has admitted the mobilisation advance in respect of which mobilisation bond (Exh.5/5) for Rs.3,50,000 was furnished by the defendants, as well as the execution of the promissory note (Exh.5/17), though, of course such admission is conditional upon defendant's claim for damages and the allegation of coercion in the execution of the said promissory note. In so far as the admission with regard to the mobilisation advance and mobilisation bond is concerned that is of no help to the plaintiff for the bond was valid only up to 20‑5‑1979 and the demand for encashment of the bond made by the plaintiff on 15‑5‑1979 was finally refusal by the insurance company on 5‑9‑1979. Therefore, on 12‑5‑1984 when the letter (Exh.5/18) was written by the defendant the claim on the said bond was already time‑barred. That being no admission of the mobilisation bond would not be an acknowledgement of liability for purposes of section 19 of the Limitation Act and indeed no such plea had either been taken in the suit, which, based on, the promissory note was filed under Order 37, C.P.C., or during the arguments. The next point to be examined in the case is, as to whether the letter (Exh.5/18) would constitute an acknowledgement of the defendants' liability under the promissory note. The execution of the promissory note is admitted in the letter but it was contended that there was no express admission of liability in respect of the amount of the promissory note and in any case the alleged admission 9f execution of the promissory note was clearly subject to two conditions, namely, that the defendant suffered losses due to breach of contract by the plaintiff and that the promissory note was obtained under coercion. The scope of section 19 of the Limitation Act has been thoroughly examined in M.G. Qadir's case, referred to earlier and after going through a large number of decisions of Courts in Pakistan, England and India the learned Judges considered that for purposes of section 19 it was not necessary that the acknowledgement should be with a conscious intention of admitting liability but even an implied and indirect admission of liability would constitute an acknowledgement. As to the interpretation of the writing alleged to contain the acknowledgement their Lordships found, that, "... ... it is a well‑recognised rule that the meaning of a document must be gathered from its language. Surrounding circumstances can be looked into only if the language is vague and ambiguous". Applying the rule laid down in M.G. Qadir's case and several others referred to therein, defendant's contention that in order to constitute acknowledgement under section 19 of the Limitation Act there has to be an express admission of liability has no force. Admission of the execution of a document setting out the liability, as in the present case, would dearly amount to admission by implication and be a good acknowledgement for purposes of that section AS to the second objection with regard to the reference in the letter about losses suffered by the defendants due to alleged breach of agreement by the plaintiff, this would at best, as observed earlier, constitute a claim for set‑off as contemplated in Explanation I to the said section 19 and, therefore, if otherwise the said document is held to be an acknowledgement of liability, this factor alone would not change its character. With this I move on to consider the effect of the last objection of the defendant, that, the promissory note was obtained under coercion. It has already been held that the said promissory note was obtained under pressure and had not been executed by the defendant of his free will. It is settled that for purposes of section 19 of the Limitation Act the writing has to be interpreted liberally so as to maintain the right to sue. Following that principle implied and indirect admissions of liability have been held by Courts to be acknowledgements under section 19, and therefore, normally a person's written admission of the execution of document evidencing his liability would undoubtedly amount to admission under section

19. But, can this rule be stretched to include a case where the writing admitting the execution is in the nature of a complaint addressed to the concerned authority alleging use of threat and coercion in the execution of the earlier document. Here, what is claimed to be the admission (Exh.5/18) in respect of the execution of the promissory note (Exh.5/17), if examined closely, would appear to be in the nature of a complaint to higher authority about getting the promissory note executed under pressure. Defendant's fear of the Martial Law Authorities is apparent from the letter and so in penultimate para. There of the defendant out of shear fear and frustration offers to execute another promissory note if desired by the Deputy Martial Law Administrator. Would this offer, for execution of fresh promissory note, in the context of the letter, constitute an acknowledgement? In my view it would not, for, obviously it was not a voluntary offer, but was made solely because the defendant was apprehensive of the unlawful action against him by the officer concerned. Similarly, on a fair construction of the said letter, as a whole, there is no doubt that the reference to the earlier promissory note (Exh.5/17) by the defendant No.1 was only with a view to highlight the unlawful means adopted in the past too for getting the promissory note executed. In the same context reference has been made in the letter to defendant's representation in consequence of which he was in formed by a senior officer that, "...... the entire matter was studied and since the matter relates to business transactions, the petition of the Defence Housing Authority has been rejected and the case was finally closed." Having regard to all these circumstances, it appears to me that, the said letter (Exh.5/18) would not constitute an admission of liability under the said promissory note (Exh.5/17) for purposes of section 19 of the Limitation Act. As such I hold that plaintiffs claim is barred by limitation. Accordingly, issue No.1 (a) is answered in the affirmative, i.e. the suit is barred by limitation. Issue No.2 is also answered in the affirmative and my finding on that issue is that, the promissory note (Exh.5/17) was got executed under pressure. On issue No.3 my finding is that the said letter (Exh.5/18) would not constitute admission of liability by the defendants, In view of my findings on issues Nos.1(a), 2 and 3 as discussed above, issues Nos. 1 and 4 are answered in the negative. In so far as issue No.5 is concerned it appears that the mobilisation bond was furnished by the defendants to cover their liability at that time but, as already held plaintiffs claim on that bond became time‑barred long ago. As such this issue has become redundant. As a result of the above discussion and my findings on the various issues I dismiss the suit of the plaintiff. AA./P‑257/K?????????????????????????????????????????????????????????????????????????????????????? Suit dismissed.