1989 PLP 3931 (MLD)

3. The appellants resisted the suit denying the competence of the person filing it on behalf of the respondent‑I.C.P., showing that it was barred by limitation as also res judicata, claiming. that the Universal Oil and Vegetable Ghee Mills Limited was a necessary party as the shares in question belonged to it; and stating that after its nationsalization taking place on the 2nd of September, 1973, the liability for its shares, if any, could be recovered from the State, especially because its shares could not be negotiated thereafter privately. They further contended that under clause (5) of the agreement the respondent‑LC.P. could sell away the shares in open market and that on account of their failure to avail the opportunity, they were disentitled from recovering their price etc. from them. They submitted that the prescribed period of four years had expired long ago and that the suit was not maintainable on that account as well. Last but not the least, they observed that the period of about thirteen months taken in the proceedings before the Collector and the suit brought by them could not be discounted. The following issues were framed by the trial Court:‑ "(1) Whether the suit has been filed by a competent person? (2) Whether the suit is barred by time? (3) Whether the suit is hit by the principle of res judicata? (4) Whether the plaintiff is entitled to the recovery of said amount? (5) Whether the Universal Oil & Vegetable Ghee Mills Limited is a necessary party; if so, its effects? (6) Relief."

4. The trial Court found all issues in favour of the plaintiff‑corporation and decreed the suit.

5. Maintainability of the suit was again challenged on the premises that the alternative remedies of recovering the debt by the sale of the shares in the market as provided in the agreement, or under the Hydrogenated Vegetable Oil Industry (Control and Development) Ordinance XIX of 1973, were not availed; secondly the contract had frustrated under section 56 of the Contract Act due to the aforementioned legislation which prevented the appellants from buying the shares; and thirdly the limitation of three years starting from the 13th of March, 1973 in terms of Article 64 of the Limitation Act had expired on the 12th of March, 1976, that is much earlier than filing of the suit on the 21st of December, 1976.

6. The point of limitation looked like a preliminary objection, and was indeed pressed comparatively with greater objectivity. The contract between the parties concluded on the 11th of December, 1968, envisaged that the debt shall be payable on the expiry of four years from the date of subscription made by the I.C.P. in purchasing the shares on behalf of the appellants. The subscription was made on the 14th of March, 1969, and the, stipulated period of four years counted from that date expired on the 13th March, 1973. Ordinarily the latter date was terminus a quo, but the respondent‑I.C.P. claimed exclusion of the time spent in proceedings conducted at their instance by the Collector under section 31 of the investment Corporation of Pakistan Ordinance IV of 1966 and also the suit brought by the appellants to stall recovery. Sections 14 and 15 of the Limitation Act were invoked in support of the contention that those proceedings were being pursued bona fade and secondly the interim injunction obtained by the appellants in their suit had virtually stayed the institution of this suit. Still further, the respondent averred that the liability was acknowledged by the appellants in their letters dated the 10th of July, 1973 and the 27th of July, 1973, part payment of Rs. 99,394.on the 27th of July, 1973, through draft Exh. P.W. 1/10; and lastly by their legal notice dated the 23rd of June, 1976, Exh.P.W. 1/9. This is how after availing these exclusions and extensions of time, they maintained that the suit filed on the 21st of December, 1976, was quite in time.

7. In reply, this computation of time was vehemently assailed maintaining that section ibid. would not apply to proceedings before the Collector firstly because he did not act as a "Court" and secondly the action taken by him was not of the nature of "civil proceedings". The contention was really based on authority. Collector was only an "officer", and not a "Court" and the proceedings before him were as well not of civil nature to attract section 14 ibid. Reliance was placed upon Gobinda Mal and others v. Santa (1914 P.R.83) and Radhakisan Laxminarayan Toslinival v. Uttamchand Motilal Agarwale and another (AIR (31) 1944 Nagpur 313) in support of the contention that section 14 of the Limitation Act did not apply to proceedings maintained for recovery of arrears, nor was a Revenue Officer conducting the same a Court. Nor was the suit filed by the appellants of any assistance to them in this behalf, in that it did not appear to have had been brought in good faith, nor did it fail "from any defect of jurisdiction, or other cause of like nature". Conversely it was filed to counter the proceedings taken up by the Collector to effect recovery and was dropped when a part payment was accepted by the respondent. Counsel could not show how the Civil Court entertaining it lacked jurisdiction or it was not entertainable for any like defect. Likewise, section 15 also could not be successfully employed to exclude time, for, the temporary injunction directed only to stay the recovery rather than the institution of the suit. Bala Tripura Sundaramma v. Abdul Khader (AIR 1933 Madras 418(F.B.) provided that in order to avail the extension of time under the said section, the stay should have been granted against the institution of the suit. Short of this requirement, staying other proceedings would not enable the party concerned to claim exclusion of time taken in those proceedings. Even the acknowledgment of the liability through letters dated the 10th of July, 1973, E and the 27th of July, 1973, or part payment of the debt on the 27th of July, 1973, Exh. P.W.1/10 could not save the limitation as the suit filed on the 21st of December, 1976, was clearly beyond the three years prescribed by Article 64 of the Limitation Act. The latest acknowledgment, or for that matter the part payment were dated the 27th of July, 1973, vide Exh. P.W. 1/10 and assuming that these had the effect of starting the limitation afresh under sections 19 and 20 of the Limitation Act, nonetheless it expired on the 26th of July, 1976. The suit was brought on the 21st of December, 1976, that is some five months after the lapse of the prescribed period. No attempt was made to explain delay of each day. The lower Court erroneously applied sections 14 and 15 ibid to exclude time taken in the revenue proceedings and also the suit. We are constrained to reverse its finding on issue No.

2. The suit was evidently barred by limitation.

8. Although other points referred to in the earlier part of this judgment were equally stressed, yet the objection in regard to the expiry of the limitation succeeded so formidably as if those points receded back to a secondary position. No decision need be given on them.

9. We accept the appeal and set aside the impugned judgment and decree. The respondent‑I.C.P.'s suit is dismissed being barred by time. Parties to bear their own costs. H.B.T./J‑56/L Appeal accepted.