1996 PLP 813 (MLD)

The defendants have filed written statement denying the plaintiff's claim and alleging that the suit is barred by limitation. On the pleadings of the parties, the following issues were framed on the 8th September, 1979:‑‑‑ (i) Whether the suit is barred by time? (ii) Whether the plaintiff supplied sub‑standard medicines? If so, whether the defendants suffered any damages? (iii) Relief. Tile plaintiff examined its Managing Director, Ch. M. Nazeef, in support of its case. The defendant did not examine any witness. Mr. M. A. M. Namazi, learned counsel for the defendant submits that the suit is barred by limitation and states that he does not wish to advance any argument on the other issues adding that if the suit is found to be within the period of limitation, it may be decreed without any finding on the other issues. Mr. Qureshi agrees with Mr. Namazi that the suit be decided solely on the question of the period of limitation. I have, consequently, examined the record and heard the learned counsel and my finding on the question of limitation is as follows. It is an admitted position that the plaintiff delivered to the defendant certain medicines between the Ist October, 1973 and the 7th December, 1973, Admittedly the last delivery was on the 7th December, 1973. Mr. Qureshi submits that after the last delivery, some of the medicines supplied earlier to the defendant were replaced, as evidenced by the letter, dated the 17th May, 1974, which is Exh.80. According to that letter, the plaintiff replaced 75 lbs. of Vitamin B. Compound Syrup and 26 lbs. Multivitamin Syrup. There is, however, no evidence to link these medicines with any of the medicines which were supplied earlier and neither the plaintiff's witness nor Mr. Qureshi have been able to point out any link between the medicines mentioned in the letter dated the 17th May, 1974, and the medicines supplied by the plaintiff to the defendant earlier. It is, therefore, clear that the supply mentioned in the letter dated the 17th May, 1974 (Exh.80) is not related to the earlier supplies and is not relevant for the purpose of determining the period of limitation for this suit. Mr. Namazi submits that there is no plea or proof of any acknowledgment of liability. He submits further that there was no plea or proof that there was any arrangement between the parties for supply on credit. He, therefore, submits that the liability for payment arose upon each delivery of the medicines and time for filing the suit expired, under Article 52 of the First Schedule to the Limitation Act, three years after each delivery. Mr. Qureshi, in reply, submits that whereas the period of payment would normally be three years from the date of each delivery, yet in the present case there was no period for payment fixed because the payment was dependent upon a certificate being issued by the officials of the defendant, as is shown by directions on the orders placed by the defendant upon the plaintiff. One such order is Exh.30 dated 1‑10‑1973. A copy of that order is stated to have been forwarded for information and necessary action to (i) Director S.I.T.E./Landhi/City, (ii) Director Finance and (iii) Audit Officer, Head Officer and Incharge Specialist Clinic's SITE with instructions to "receive medicines and check the supplies and after bringing these on Stock Registers, he may then record a certificate on the copy of the original bill (specimen on reverse) and send it to the Head Office alongwith a copy of F‑10 for payment to the supplier". Mr. Qureshi submits that the officers of the defendant did not submit the certificate mentioned in the instructions contained in the copy of the order forwarded to them by their Head Office and, therefore, payment was not made to the plaintiff. The argument is untenable. The instruction on the copy of the order is no more than an instruction by the defendant to its various officers and does not amount to an agreement between the parties to postpone payment until compliance is made with it by the officers of the defendant. It was a matter entirely between the defendant and its various officers and the plaintiff was not in any manner concerned with it. In any event, Mr. Qureshi has not brought to any notice any evidence that certificates were not issued by the officers of the defendant. The period of limitation, thus, started running from the date of each supply and, lastly, from the 7th December, 1973, when the last supply was made. It is not the plaintiff's case that there was any acknowledgement of liability; but Mr. Qureshi says that the defendant made part payment on the Ist February, 1974, as evidenced by its letter dated 31‑1‑1974 (Exh.77) and, therefore, the period of three years for filing the suit has to be calculated from that date. The letter, however, does not indicate that this payment of Rs.750 was in respect of the payments due for the medicines in question in this suit and, in any case, as Mr. Namazi points out, it was in full payment of the supplies made in pursuance of the order, dated 10th September, 1973 (Exh.91). The plaintiff's witness in his cross‑examination has accepted that the payment of Rs.750 was "full payment regarding Exh.9l ". The contention, therefore, has no merit. It follows from the above discussion that the suit of the plaintiff, which was filed on the 22nd January, 1977, which is the more than three years even after the last delivery which was on the 7th December, 1973, is barred by limitation and is, thus, liable to be and is hereby dismissed. There will, however, in the circumstances of this case, be no order as to costs. A.A./R‑1/K ???????????????????????????????????????????????????????????????????????????????????????? Suit dismissed.