2008 PLP 114 (MLD)

MAULVI ANWARUL HAQ, J.

On 17-4-2003, respondent filed a suit against the appellant for recovery of Rs.1,10,28,513 under Order XXXVII, C.P.C. In the plaint it was stated that vide agreement, dated 14-9-1999, the appellant availed the credit facility for purchasing valves fittings and pipes from the respondent. According to the mode of payment agreed to by both the parties, the appellant handed over four post-dated cheques to the respondent and these cheques were presented on the dates mentioned thereon. It was then stated that actually the agreement was executed on 14-9-1999 whereas the respondent had already started the supplies in July, 1999. The last delivery was made on 8-8-2000. All the supplies were made and delivered against the receipts, which were duly acknowledged by the General Manager of the appellant. It was then explained that although under the terms of the agreement, the delivery was to be completed till 15-12-1999, but by implied consent, the time was extended and the delivery continued up to 8-8-2000. Four cheques were presented for payment in the manner stated in para.6 of the plaint were returned with various remarks by the Bank. The amounts of the cheques having not been paid, a decree was accordingly prayed for.

2. The appellant was served in the manner prescribed and an application was filed on 20-6-2003 for leave to appear and to defend the suit. It was replied by the respondent on 20-9-2003. Vide order, dated 30-9-2003, learned District Judge dismissed the' said application and adjourned the case for 4-10-2003 for recording the evidence of the respondent. On the said date, learned District Judge while observing that the evidence need not be recorded proceeded to decree the suit.

3. Learned counsel for the appellant contends that the learned District Judge has proceeded to pass the impugned judgment and decree even without examining the plaint and the documents relied upon by the respondent and appended therewith. According to him, the suit was time barred and the learned District Judge was bound to take note of this fact. He further points out that upon reading of the plaint, it was not only a matter of issuance of cheques but was directly relatable to a contract and the consequent performance thereof as pleaded by the respondent. According to him, learned District Judge has acted against the law while passing the impugned judgment and decree and refusing the leave to appear and defend the suit.

4. Learned counsel for the respondent, on the other hand, contends that the application filed by the respondent does not at all disclose a plausible defence and the suit was correctly decreed with reference to the issuance of cheques, which was not denied by the appellant. Learned counsel for the appellant rejoins to state that the matter was to be considered with reference to the terms of the agreement, which was not only referred to in the plaint, but a copy whereof has been appended therewith.

5. We have gone through the records of the learned trial Court. We have already reproduced above almost the entire contents of the plaint. It was categorically stated that the cheques were issued as a condition of the contract between the parties and these were post-dated cheques. Both the learned counsel have admitted that the copy of the agreement, dated 14-9-1999, referred to in the plaint, is annexed at pages 75 and 76 of the file of trial Court. We have also gone through the said agreement and prima facie find that although the dates of cheques are mentioned and there is an agreement that the cheques will be presented on the dates mentioned in the agreement. However, the amount has not been mentioned. What has been mentioned is the percentage of the supplies made which, of course, means the value of the supplies made.

6. Coming to the said contention of the learned counsel for the appellant. We find that the date of the first cheque is 15-1-2000, second cheque is 1-3-2000 while the third. cheque is 15-4-2000. The suit was filed on 17-4-2003. According to the learned counsel for the appellant, the matter is governed by Article 73 of the Limitation Act, 1908, which provides a period of three years commencing from the date of bill of exchange. To our mind, the matter is governed by Article 64-A of the Limitation Act, which specifically deals with the suit filed under Order XXXVII, C.P.C. and the starting point is when the debt becomes 'payable. To determine this point, the contents of the agreement are to be looked into which clearly provides that the cheques are to be presented on the dates mentioned on each cheque. However, it will have to be determined as to whether with reference to Article 64-A of Schedule to the Limitation Act, 1908, the suit is within time. We are also in agreement with the learned counsel for the appellant that the matter could not have been decided without determining the question of performance of the said agreement by the parties.

7. We, therefore, do find that the leave to appear and to defend the suit ought to have granted by the learned District Judge after examining the material on record. This RFA is accordingly allowed and the impugned judgment and decree, dated 4-10-2003 is set aside. We also grant leave to appear and to defend the suit to the appellant. However, this will be subject to deposit of a sum of Rs.50,00,000 in cash with the learned District Judge, Islamabad, on or before 27-6-2007. In case the amount is deposited, learned District Judge shall take necessary steps to invest it in some Federal Government profit bearing saving scheme. The amount and the profits accrued thereon shall be disbursed in accordance with the final result of the suit. The appellant shall also on or before 27-6-2007 furnish a Company-guarantee in the sum of Rs.50,00,000 to the satisfaction of the learned District Judge. On the said date, the parties shall appear before the learned District Judge and the appellant shall file his written statement. Upon compliance of the said condition, learned District Judge shall proceed to decide the suit in accordance with law after framing the issues arising out of the pleading of the parties and recording their evidence. It is hoped that the learned District Judge shall take steps to decide the suit before the year, 2007 is out. Needless to state that in case the aforesaid condition qua deposit and furnishing of security are not complied with on or before 27-6-2007, the leave granted shall stand withdrawn.

8. Records of the trial Court along with a copy of this judgment be immediately remitted to the learned District Judge, Islamabad. S.A.K./N-71/L Appeal accepted.