1997 PLP 628 (CLC)

Anwar Mansoor Khan for Defendants No. l and

2. C.M.A. No. 6061 of 1994. In this suit for recovery of Rs.35,84,750 on the basis of investments made by the plaintiff with the defendant No. l company through defendant No.2 as its Managing Director, defendants seek an order for rejection of the plaint for the reason that the suit is barred by limitation.

2. It is the case of the plaintiff that he invested the amount in suit in cash, through demand draft and cheque between 27‑10‑1987 and 13‑1‑1988 with the defendants. After the investment he was appointed as Director in the defendant No. l company vide circular dated 18‑2‑1988 and he served as Director in the company for a period of 5‑6 months whereafter he was disallowed to continue his office and even restrained from entering the office by defendant No. l with mala fide intention on the pretext that due to crisis in the business defendant No.2 was rescheduling the management and after settling such affairs he would adjust the plaintiff again. After this incident defendant No. l avoided to pay interest/profit to the plaintiff as defendant No.2 had nefarious designs and being involved in illegal investment business he started hiding himself from different persons including the plaintiff. The plaintiff urged that it has come to his knowledge that defendant No.2 had also defrauded many other persons by receiving heavy amounts and was also required by F.I.A. in many such cases. The plaint recites that in December, 1992 plaintiff approached defendant No.2 who promised to pay profit at agreed rate of 18% w.e.f. January, 1988 before 31st December, 1992 but he failed to pay the said interest and thereafter in the first week of January, 1993 on the visit of the plaintiff he promised again to pay the profit on or before 20‑1‑1993 positively but he did not fulfil his promise. In these circumstances plaintiff demanded return to his entire investment through his legal notice dated 31‑1‑1993 but to no avail hence this suit for recovery of the principal amount with profit at the rate of 18% w.e.f. January, 1988.

3. It is contended that last transaction as shown in the plaint is dated 18‑2‑1988; that the plaintiff attempted to enlarge the cause of action claiming that defendant No.2 promised to pay in December, 1992 and January, 1993; that no material in support of this assertion has been produced and even if defendants are considered to have enlarged the time in December, 1992 suit had already become barred by limitation which cannot be enlarged otherwise than as provided in the Contract Act.

4. In his counter‑affidavit the plaintiff urged that on 13‑1‑1995 he met defendant No.2 at Karachi Air Port Terminal where he offered him tea in restaurant, discussed the dispute in suit and expressed his willingness for payment of the amount involved in the suit to be settled by mutual consent but no progress thereafter was made.

5. Upon hearing learned counsel for the parties it appears that the defendants having disputed investment of the amount by the plaintiff in the company pleaded that they received such amounts from one Tariq Mehmood, Managing Director of Poineer Alliance (an investment company) against whom they filed Suit No.995 of 1988 for damages worth Rs.2,37,50,000 which was decreed ex parte by this Court on 10‑5‑1989. The trend of arguments advanced by the defendants is that since payments are allegedly made in December, 1987 and January, 1988 period of limitation as prescribed in Articles 58 and 59 of the First Schedule to Limitation Act shall be computed from such date thus suit filed by the plaintiff on 7‑8‑1994 is hopelessly barred by time. On the other hand learned counsel for the plaintiff is of the view that there being no specific provision for recovery of invested amount the suit shall be governed by Article 120 of the First Schedule to Limitation Act which .prescribes a period of six years from the date when the right to sue accrues. The stand of the learned counsel himself at the stage of institution of suit when office took an objection regarding limitation was that the suit is within time under Article 115 of the First Schedule to Limitation Act as the period shall start with effect from 31‑1‑1993 when the defendant committed breach of contract on demand of the said dues.

6. On the averments made in the plaint reflecting the accrual of cause of action in December, 1992 firstly and thereafter on 31‑1‑1993 when demand was raised for repayment of investment amount, I am of the considered view that the suit does not seem to be barred by law as contents of the plaint are required to be accepted on their face value. Without taking into consideration merits of the contention which may prejudice the case of the parties, I dismiss this C.M.A. with an observation that an issue on the point of limitation shall be struck alongwith issues of facts. A.A./I‑7/K????????????????????????????????????????????????????????????????????????? Order accordingly.