1. ' This is a suit for the recovery of Rs, 5,49,000. The facts leading to the filing of this suit are that the plaintiffs imported a consignment of 350 domestic refrigerators. The above consignment arrived at Karachi on or about 15th March, 1970 through defendant No, l's vessel "MAX REICH-PIETSCH". It has been averred that it was discovered by the plaintiffs on the discharge of the above consignment that the same was defective. It has also been averred that in response to the plaintiffs' request, the defendant No, 1 appointed their surveyor, Messrs G. B. Potta & Co. Ltd. After that the plaintiffs lodged a claim of Rs, 5,49,000 against the defendants. It has further been averred that in response to the plaintiffs' claim the defendants sent their letter dated 1st May, 1970, wherein they did not dispute the fact that the consignment had suffered damage during the transit while in their custody and care, but attempted to dispute the liability on the sole ground of the alleged defective packing. It has been averred that although the defendants were prepared to discuss the matter with the plaintiffs but sent no reply in response to the plaintiffs' many letters. It has further been averred that ultimately the plaintiffs served a laws er's notice dated 23rd November, 1970, to which the defendants sent their telegram and extended the time for settlement of the claim upto 15th June, 1971. On the basis of the above averments the plaintiffs have filed the present suit on 7th August, 1971.
2. ' Both the defendants have filed a joint written statement wherein, inter alia, it has been averred that the suit is barred by limitation. On merits, it has been averred that the alleged damage had occurred on account of the defective packing of the refrigerators. It has been denied that the defendants extended any time for the purpose of the settlement of the plaintiffs' claim. It has also been denied that the plaintiffs sent any telegram. It has also been averred that the defendants by their letter dated 1st May, 1970 repudiated the false claim made by the plaintiffs. It has further been denied that any cause of action accrued to the plaintiffs on the date mentioned in para. 20 of the plaint, or that the defendants extended the time as alleged by the plaintiffs.
2. On the basis of the above pleadings, the following consent issued were adopted on 30th October, 1972.
(1) "Is the plaintiff a firm registered under the Partnership Act ?
(2) Did the defendants No, 2 give any declaration to the Customs Department ? If so, are the defendants No, 2 personally liable for the claim of the plaintiff ?
(3) What were the contents and condition of 350 cartons that were delivered to defendant No, 1 ?
(4) Whether the packing used was sufficiently strong to withstand the sea voyage from Italy to Karachi ?
(a) Was any detailed survey of the goods carried out. If so, at what place it was surveyed ?
(b) Was the detailed survey held after notice to the defendants and is it binding upon the defendants ?
(6) Whether any damage was caused to the goods while they were in the custody of the defendant No, 1 for carriage ? If so, to what extent and was it due to the negligence of the defendants ?
(7) Did the plaintiffs accept the delivery of goods without objection and carried it to their warehouse without any notice to the defendants. If so, its effect ?
(8) Did the plaintiffs suffer a loss of Rs, 5,49,000.
(9) Whether the defendants extended the time for settlement of the claim upto 15th June, 1971 ? If so, is the suit within time ?
(10) What the decree, if any, should be."
3. ' This Court by an order dated 3rd May, 1978 with the consent of the learned counsel for the parties, ordered that Issue No, 9 would be heard as a preliminary issue. After the passing of the above order, the plaintiffs filed an application under Order VI, rule 17 read with section 151, C. P. C. On 14th May, 1978 for the amendment of the plaint by adding a new para. As para. 19-A which reads as follows :- "By extension of time in the settlement of the claim, the defendant bad entered into a new/fresh contract. The plaintiff had filed a suit within the prescribed time. By the fraud practised by the defendant, the plaintiff was prevented from filing the suit within the prescribed time. The fraud became apparent when the defendant insisted to decide the suit on preliminary issue relating to limitation. It is submitted that the time shall start running when breach to the new/fresh contract took place or in the alternative when the fraud became apparent on 3rd May, 1978."
4. ' The above case came up for bearing of the preliminary issue as well as for the hearing of the plaintiffs' aforesaid application before me on 19th August, 1978. I have disallowed the plaintiffs' above application today by a separate order.
(4) I have heard the arguments of the learned counsel on the above preliminary issue and my finding on the above issue is as follows: ' It may be observed that the above issue has been framed on the basis of the plaintiffs' averment, inter alia, contained in para 19 of the plaint which reads as follows :- "Ultimately, the plaintiff served a lawyer's notice date 23rd November, 1970 to which the defendants sent their telegrams and extend the time by 3 months. The plaintiff sent further letters requesting the defendants to settle the just claim but of no avail, but the defendants extended the time for settlement of the claim upto 15th June, 1971 when the plaintiffs sent letters but of no avail, hence this suit."
5. ' It may be observed that the plea of extension has been raised by the plaintiffs on the basis of the alleged telegram sent by the defendants, a copy of which is annexed to the plaint. The above copy does not indicate that the aforesaid telegram was sent by the defendants to the plaintiffs and according to the learned counsel for the defendants, the said telegram was sent by the underwriter. Be that as it may, even if it be held that in fact the telegram was sent by the defendants to the plaintiffs, the question which will require consideration is, as to whether the alleged extension would bring the suit within the limitation period. Mr. Saleem Akhtar, learned counsel for the defendants, has relied upon the case of Deutsche Dampschiffaharts-Gesellschaft v.
6. Central Insurance Company, Ltd., Karachi (1) and the case of M. Imamuddin Janjuwa v. Thal Development Authority (2) in support of his contention that the parties by their agreement cannot extend the period of limitation and that there cannot be any estoppel against law, whereas Mr. Abdul Rauf, learned counsel for the plaintiffs, has referred to the case of Abdul Jalil Choudhry v.
7. Muhammadi Steamship Company and another (3), the case of British India Steam Navigation Company Ltd. v. Abdul Razaq-Abdul Kadir and others (4), the case of East & West Steamship Co. v.
8. Hussain Brothers and others (5), the case of Abdul Ghaffar Abdul Ghani BrOthers v. The Bombay Steam Navigation Company Ltd. (6), the case of Firm Muhammad Sadiq Imamdin v. The Federation of Pakistan (7), the case of River Steam Navigation Company and another v. Messrs Dada Ltd. (8), the case of Mst. Bilquis Sultana v. The Settlement Commissioner (9) and the case of Mustaqim v Sher Bahadur (10), in support of his contention that the suit is within time and that the defendants were competent to extend the period of limitation. {{TABLE}}
(1) PLD 1975 Kar. 819
(3) PLD 1961 SC 340 PLD 1968 SC 15 (7) PLD 1056 Lah. 1093 (9) PLD 1975 Lah. 185 (2) PLD 1972 SC 123
(4) PLD 1967 SC 68
(5) PLD 1954 Sind 233 (8) PLD 1959 Dacca 672 (10) PLD 1962 Pesh. 14 {{TABLE}}
(5) (a) Reverting to the Karachi of 1975 (PLD 1975 Kar. 819), it may be observed that the facts of the case were that a consignment was landed in Karachi on 11th June, 1962 from the vessel named in the judgment in damaged condition. The respondents in the appeal before the High Court paid a sum of Rs, 13,700 to the consignee and thereafter claimed the same from the carrier, the appellants, on the basis of the right of subrogation. It was pleaded by the respondents that the appellants by their letter dated 9th May, 1963 extended the period of limitation upto 17th September, 1963. The appellants repudiated their liability by their letter dated 6th June, 1963. The suit was filed on 1st July, 1964. It may be observed that the damage to the consignment was discovered by the consignee on 1 1th June, 1962. In the above-cited case, the appellants/defendants in addition to the denial on merits also raised the plea of limitation. The trial Court dismissed the suit. However, on appeal the learned Additional District Judge at Karachi held that the suit was within time as the appellants/defendants had extended the period of limitation upto 17th September, 1963. Being aggrieved by the above judgment, the appellant filed II Appeal in the High Court which was allowed by a Division Bench comprising of Dorab Patel and Jamaluddin H. Ahmed, JJ. The judgment was pronounced by Dorab Patel, J. (as his Lordship then was). After dealing with various Pakistani, Indian and English cases, their Lordships were pleased to bold that an agreement to extend the period of limitation is illegal and is not enforceable. It was also held that the parties by mutual agreement may extend the time for the performance of the contract of off regiment or that they can enter into a fresh contract for the delivery of the cargo shipped, but this was possible only as long as the delivery had not been completed. It was further held that if a consignment has been delivered to the consignee, whether damaged or undamaged, there cannot be any fresh agreement to deliver it, because that would be impossible. A distinction was made between the cases of short delivery and/or partial delivery on the one hand and the cases of the completed delivery of the damaged goods. The above case on all fours is applicable to the instant case inasmuch as the plaintiffs have pleaded extension of time simplicitor.
(b) Referring to the case of PLD 1972 SC 123, it may be stated that the question before their Lordships of the Supreme Court was as to whether the applications under section 20 of the Arbitration Act, 1940 filed by the appellant were within time. The appellant had taken two construction works under two contracts which were completed on 30th April, 1954 and 30th June 1954 and final payments to the appellant were made on 14th July 1956 and 20th August, 1956, after making certain deductions from the bills submitted by the appellant. Against the aforesaid deductions the appellant lodged protest and thereafter filed applications under section 20 of the Arbitration Act on 20th February, 1957. Thereupon, an arbitrator was appointed who gave his award which was filed in the Court on 27th November, 1959. Both the parties to the arbitration proceedings filed objections. While the objections to the award were pending, the appellant filed an application on 3rd February 1960 to withdraw his earlier applications with liberty to file fresh applications for the same purpose. The above application was consented to by the Advocate for the respondent Authority. Thereupon, the Court recorded a joint statement of the learned Advocates for the parties to the effect that there were certain disputes between the parties and that they could not agree to the appointment of the sole arbitrator and that they agreed that the said disputes be referred to an arbitrator to be appointed by the Court on the basis of the above statement, the Court on the same day gave the permission sought for and fresh applications under section 20 of Arbitration Act were immediately filed, to which the respondents filed objections and raised the plea of limitation. It was urged by the appellant that the aforesaid joint statement was recorded with the consent of the respondent's advocate and that the application to withdraw the previous applications was granted with the consent of the respondent and, therefore they were estopped from raising the plea of limitation and that the limitation period was to he computed from the date of the recording of the aforesaid joint statement. It was held by the Supreme Court that the parties to an arbitration agreement can by consent modify an award, but this does not mean that they can waive the statutory requirements of the Limitation Act and that there can be no question of estoppel against a statute, particularly when the question of limitation is involved, for section 3 of the Limitation Act clearly enjoins upon the Court that every suit, appeal or application made after the limitation prescribed therefor by the First Schedule to the Limitation Act or under any other law be dismissed although limitation has not been set up as a defence. It was held that the appellant's contention that since the learned Advocate then appearing for the respondent authority had consented to the withdrawal of the application with permission to file fresh application amounted to an estoppel, had no force. It was further held that even assuming that the learned Advocate for the respondent Authority then appearing for it, had the necessary authority to do so, the respondent Authority was not estopped so far as this question of law was concerned, and, therefore, it was held that the subsequent applications under section 20 of the Arbitration Act were barred by limitation. The above case also lays down clearly that the parties by their consent cannot negative the statutory limitations provided for in the First Schedule to the Limitation Act.
(6) (a) Reverting to the cases cited by the learned counsel for the plaintiffs, it may be observed that in the case of Abdul Jalil Choudhry v. Muhammadi Steamship Co. (1), their Lordships of the Supreme Court were pleased to hold that by virtue of section 63 of the Contract Act, the c parties in a contract of affreightment can extend the time for the deliver of the goods and that because of the aforesaid extension there would be a fresh terminus a quo for limitation for filing suit against the carrier for the non-delivery of the goods. The facts of the above case are distinguishable from the instant case inasmuch as in the instant case there was no alleged promise on the part of the defendants to deliver the goods on a fresh date. According to the averments in the plaint, the goods in damaged condition were handed over to the plaintiffs in 1970.
(b) Reverting to the case of British India Steam Navigation Co. Ltd. v. Abdul Razaq Abdul Kadir, it will suffice to of serve that in the above case it was reiterated that the parties by their mutual agreement may fix fresh date for the delivery of the goods and that there would be afresh terminus a quo for the purpose of limitation from the date of the breach of the fresh promise. The above case is also distinguishable from the instant case.
(1) PLD 1961 SC 340
(c) The case of East & West Steamship Company v. Hussain Brothers (1) does not support the contention of the learned counsel for the plaintiffs for the reason that in the aforesaid case there was no question of limitation involved. Their Lordships were pleased inter alia to hold that the clauses in the Bill of Lading exemption ship owners from liability for loss or damage would be null and void and that exceptions mentioned in Article 4 of the Schedule to the Carriage of Goods by Sea Act, 1925 do not cover a case of failure to discharge goods properly and carefully. The above case may have some hearing on merits of the plaintiff's claim, but has no relevancy to the question of limitation.
(d) Referring to the case of Abdul Ghaffar Abdul Ghani Brother v. Bombay Steam Navigation Co. (2), it may be observed that the aforesaid case also related to short delivery of a consignment by a shipping company. In the above case, part of the consignment was delivered and for the remaining consignment it was represented that the same would be loaded in another ship. It was held that the cause of action for the purpose of computing the period of limitation would be from the date of denial on the part of the shipping company to deliver the remaining goods. The facts of the above case are also distinguishable from the instant case inasmuch as no short delivery is involved in the present case.
(e) Similarly, the due of Firm Mohammad Sadiq Imamuddin v. Federation of Pakistan (3) also related to a case of short delivery and the suit was filed against the Federation of Pakistan in respect of the consignment sent through railway. It was held that the time under Article 31 of the Limitation Act runs from the definite refusal or declaration of inability to deliver the goods made by the defendant and that the cause of action in the case of partial delivery would be on the date when the consignee was made aware that there would be no further delivery. In my view, the above case has no application to the instant case.
(f) Reverting to the case of River Steam Navigation Co. Ltd. v, Bada Limiled (4), it may be stated that the aforesaid case also related to short delivery and, therefore, it is distinguishable,
(g) Referring to the other two cases cited namely Bilquis Sultana v. Settlement Commissioner Lahore and others (5) and the case of Mustaqeetn v. Sher Bahadur (6), it will suffice to observe that in the above two cases it was held that waiver means "an intentional relinquishment of a known right". The above two cases have no application to the instant case. There cannot be any waiver or estoppel against law, particularly in respect of the law of limitation as has been held by our Supreme Court in the aforesaid case of Imamuddin Janjuwa v. The Thal Development Authority (7).
(7) (a) It may be observed that the plaintiffs in their plaint have clearly admitted that the defendants had repudiated their liability through their letter dated 1-5-70 by advancing the plea that the damage (I) PLD 1968 SC 15 (2) PLD 1954 Sind 233 (3) PLD 1956 Lah. 1093 (4) PLD 1959 Dacca 672 (5) PLD 1975 Lah. 185 (6) PLD 1962 Pesh. 14 (7) PLD 1972S C 123 was caused on account of defective packing. A plain reading of the plaint indicates that the suit is barred by limitation on the face of it. It may be advantageous to reproduce here in below paras 16 to 20 of the plant, which read as follows "(16) In response to the above claim, the defendants sent their letter dated 1-5-1970. It is noted that the defendants did not dispute the fact that the consignment had suffered damage during transit while in their custody and care and attempted to dispute the liability on the sole ground of the alleged defective packing.
(17) It is submitted that this plea of the defendants was without any substance as the consignment was accepted without any protest or remarks. In any case the packing was normal and usual and the defendants have sufficient experience about the nature of packing used in such case.
(18) Although the defendants were prepared to discuss the matter with the plaintiff but sent no reply in response to many letters of the plaintiffs.
(19) Ultimately the plaintiffs served lawyer's notice dated 23-11-1970 to which the defendants sent their Telegram and extended the time by 3 months. The plaintiff sent further letters requesting the defendants to settle the just claim but of no avail, but the defendants extended the time for settlement of the claim up to 15-6 1971 when the plaintiffs sent letters but of no avail, hence this suit.
(20) That cause of action accrued at Karachi on or about 15-8-1970 when the vessel arrived at Karachi and subsequently when the goods were discharged and damage ascertained and then on 2-2-4971 when the time was extended and finally on 18-3-1971 when the time was extended for the first time and continues from day to day till the filing of the suit."
(b) A perusal of the above-quoted paras. Shows that the defendants had repudiated their liability through their letter dated 1-5-1970 and therefore, at the most the plaintiffs may urge that the period of limitation should be computed from the above date, It may be observed that Article 30 of the First Schedule provides one year period from the date when lesser injury occurs. In para. 7 of the plaint it has been averred by the plaintiffs that the goods were unloaded from the vessel on or about 15-3-1971 when it was discovered that the goods were damaged and, therefore, the alleged loss in fact occurred to the plaintiffs on the above date. The extension of time pleaded in para. 19 of the plaint is based on a telegram, the copy of which is annexed to the plaint, which does not indicate that in fact the defendants had agreed to extend the period upto 15-6-1971. As a matter of fact the copy of the above telegram does not indicate that it was sent by the defendants.
(e) That plaintiffs have pleaded extension of time for settlement of their claim simplicitor and have not pleaded any fresh agreement for the delivery of the goods. The goods in question were delivered admittedly prior to the defendants' letter dated 1-5-1970 whereby they had repudiated their liability and, therefore, there could not have been any question of a fresh promise to deliver the goods as has been held by a Division Bench of this Court in the case reported in PLD 1975 Kar.
9. 819, referred to hereinabove. The above Division Bench ruling of Karachi (which is binding on me), also clearly lays down that an agreement to extend the period of limitation for the purpose of a suit is illegal and is not enforceable. In the aforesaid Supreme Court case of 1972 it was held as pointed out hereinabove, that there cannot be any waiver or estoppel against the law, particularly against the law relating to limitation. It may also be observed that there is a distinction between a simplicitor agreement to extend the period of limitation and a fresh agreement to perform the obligation which one of the parties failed to perform under the previous agreement, the former cannot be enforced as it would be against the public policy and whereas the latter can be enforced and in case of breach of the fresh promise, there would be a fresh terminus a quo for the purpose of computing the period of limitation for a suit. In my view the Limitation Act does not contemplate extension of the limitation period by mutual agreement of parties. Sections 6, 7, 12 to 18 of the Act provide for extension of limitation period in the various circumstances mentioned therein. Furthermore section 19 also provides extension of limitation period by virtue of admission of liability by a defendant in the manner specified therein. In the instant case, there is no such admission on the part of the defendants nor it has been pleaded or urged. Apart from the circumstances mentioned in the aforesaid sections, the parties by their agreement cannot add any additional reason or ground for extending the period of limitation.
(d) Mr. Abdul Rauf, learned counsel for the plaintiffs, has also referred to Articles 3, 4, 7 and 8 of the Schedule to the Carriage of Goods by Sea Act, 1925. In my view, the reference to the above Articles has no bearing on the facts of the instant case. On the contrary, Article 8 clearly provides that the provisions of the rules contained in the Schedule shall not affect the right and obligation of the carrier under any statute for the time being in force relating to limitation of the liability of owners of seagoing vessels. Even otherwise, in the presence of Article 30 of First Schedule to the Limitation Act, the aforesaid articles of the Schedule t the Carriage of Goods by Sea Act cannot be pressed into service in order to negative the aforesaid provision of the Limitation Act, particularly when there is no inconsistent provision in the Schedule to the Carriage of Goods by Sea Act or in the Act providing more than one year period of limitation.
10. The result of the above discussion is that even if it is to be held that the defendants had extended the period of limitation upto 15-6-1971 as alleged by the plaintiffs, the suit would still be barred by limitation as the alleged agreement for the extension of limitation period would not be enforceable.
11. Admittedly the defendants had repudiated their liability through their letter dated 1-5-1970 as admitted by the plaintiffs in para. 16 of the plaint, and, therefore, the suit is time barred. 1 therefore, hold that suit is barred by time, and therefore, the same is dismissed, but there will be no order as to costs.