1970 PLP 544 (SCMR)

M. R. KHAN, J.‑ This certificated appeal arises out of a suit for recovery of money. The suit was brought by the Lakshmi Commercial Bank Ltd. against Messrs Murli Mall Kapur & Company, a partnership firm of which Bhagwan Dass, Murli Mall Kapur and Ramsaran Kapur are the partners. These partners of the firm opened a Cash Credit Account with the plaintiff‑bank on the 29th July 1946 up to a limit of rupees one lakh. The partners executed a promissory note on the said date in favour of the bank to the above extent. They also simultaneously executed an agreement. In pursuance of the promissory note and the agreement, the partners, who are hereinafter called "the defendants", started withdrawing money from the bank and making deposits from time .to time on the hypothecation of their stock of tobacco. As a result of accounting, a sum of Rs. 44613‑3‑0 was found due from the defendants on the 30th June 1947. In the suit, the plaintiff‑bank claimed for the recovery of Rs. 45,765‑6‑9 including interest for the period from 30‑6‑1946 to 30‑6‑1950. The suit was brought on the 3rd July 1950. Murli Mall Kapur, one of the partners contested the suit denying liability for the amount claimed. He raised various pleas in his written statement. On the pleadings, as many as twelve issues were framed. The trial Court answered all the issues in favour of the plaintiff‑bank and decreed the suit with interest on the decretal amount at 5 % per annum from the date of the institution of the suit up to the time of recovery of the amount. Murli Mall Kapur filed an appeal on the 20th June 1955 in the Court of the Judicial Commissioner of the then North‑West Frontier Province. After the establishment of the High Court of West Pakistan, the appeal was heard by a Division Bench of that Court sitting at Peshawar. In the appeal before the High Court, only two points were pressed on behalf of the appellant. Of them, the first point related to the question of jurisdiction of the civil Court to try the suit and the second related to limitation. The learned Judges of the High Court found no substance in either of these two points. Accordingly, they dismissed the appeal and affirmed the decree of the trial Court. The present appeal by Murli Mall Kapur, on the certificate of the High Court, is against the High Court's decree affirming that of the trial Court. Dr. Abdur Rahim, learned counsel for the appellant pressed only two points in this appeal. His first contention was that the debt sought to be recovered is an evacuee property and, as such, the civil Court was not competent to try the suit. This was also pressed before the trial Court and the High Court, but without any success. It appears from the record that the trial Court made a reference to the Assistant Custodian, Evacuee Property, Mardan under section 34(2) of the Pakistan (Administration of Evacuee Property) Ordinance, 1949 (Ordinance No. XV of 1949) for his opinion as to whether the debt which was the subject‑matter of the suit, was an evacuee property. The Assistant Custodian gave a hearing to both the parties and by his order, dated the 4th August 1954, declared that the plaintiff‑bank having its head office at Ludhiana in India from before the 15th August 1947, the debt in question was not an evacuee property. In view of the above decision of the Assistant Custodian, the civil Court was competent to try the suit and both the trial Court and the High Court rightly held accordingly. The second contention of the learned counsel was that the suit was barred by limitation under Article 57 of the Limitation Act as it was brought beyond three years from the date of the loan. The trial Court found that the suit, though governed by Article 57, was within time because of an acknowledgment of the debt made on the 3rd July 1947. The learned Judges of the High Court, however, were of the opinion that Article 115 of the Limitation Act was the proper Article to apply in this case and that the suit having been brought within three years from the date of the defendants' failure to pay the debt on demand, was within time. They were further of the view that even if Article 57 applied, the acknowledgement of the debt saved limitation. In the facts of this case, neither Article 57, no‑, Article 115 of the Limitation Act, in our opinion, is applicable here. The Account opened by the defendants with the plaintiff‑bank was admittedly a Cash Credit Account. It was also admitted that as a result of accounting a sum of Rs. 44,613‑3‑0 was struck as the balance due from the defendant‑firm on the 30th June 1947. This stated debit balance was signed on the 3rd July 1947 by Ram Saran Kapur for and on behalf the defendant‑firm, vide Exh. P. H. On these facts, the suit was clearly governed by Article 64 of the Limitation Act. The suit was brought on the 3rd. July 1950 (2nd July 1950 was a Sunday), that is, on the last day of the period of limita tion under the said Article

64. We, therefore, agree with the Courts below, though for different reason, that the suit was brought within time. Learned counsel pointed out that the plaint was not duly stamped as it bore Indian court‑fee stamps. This point was never before raised in any of the Courts below. That being so, this cannot be allowed to be agitated at this stage. Thus, there is no merit in this appeal, and we dismiss it accordingly. It appears from the record that the plaintiff bank did not account for the defendant's goods pledged with it. It is in consideration of this fact that the parties are directed to bear their own costs throughout. Appeal dismissed.