MUSHIR ALAM, J.---Appellants have impugned the order passed by the learned Single Judge dated 29-3-2006, whereby an application under Order XII, Rule 6, C.P.C. Was dismissed and it was held that the suit is barred by time. Brief facts appear to be that appellants were awarded contract, Works Orders were issued as detailed below:-- Sr.No. Date of Works Order Date of Completion of Work
1. 5-11-1999 7-12-1999
2. 23-11-1999 7-1-2000
3. 23-11-1999 7-1-2000
4. 24-11-1999 25-1-2000
5. 24-11-1999 25-1-2000 There seems to be no dispute that the work was done, demand was raised, correspondence was exchanged, record was misplaced, but ultimately certified. It seems that the appellants were pursuing for the recovery of amount due and payable for the executed contract but to no avail. On 19-4-2003 the 'Cantonment Executive Officer addressed a letter to the Director Military Lands and Cantonment Karachi under the caption Payment of Liabilities; which letter is available at page 87 and same is read as under:-- To, The Director, Military Lands and Cantonments, Karachi Region, Karachi.
Subject: Payment of Liabilities Reference: RHQ Karachi letter No.12/6DKR/2002- 03/Faisa1/23, dated 31-3-2003:
2. The details of out standing payments in respect of works already executed by the contractors are attached for your kind perusal.
3. It may be mentioned that payments of these works could not be made so far due to paucity of funds. However, provision to meet the expenditure of Rs.5 million on account of outstanding liabilities as approved by RHQ vide letter "No.12/6DKR/2002-03/Faisa1/19, dated 30-12-2002 existed in the budget estimate 2002-03.
4. It is requested that this office may kindly be advised for further action whether payment may be made to the concerned contractors or not in the light of above submission. Sd/- (Raja Muhammad Nadir Ali)
Cantonment Executive Officer Faisal, Cantt.
Copy to: Master File.
Along with above referred letter the detail of the work executed and outstanding amounts payable to the appellants as recorded in the Measurement Book (MB) was attached. The total amount mentioned in the Column 'Payable Amount' is shown to be Rs.10,23,904,00. Consequently, the appellants filed suit for recovery of Rs.35,00,000.
The respondent did not deny the correspondence between the defendant/respondent and its Regional Head Quarter. The respondent did not deny the work carried out by the appellants.
However, asserted in Para.4 of the written statement that the execution of extra work was carried out without approval; paragraph 4 of the written statement runs as follows:--
4. That the contents of paragraph No.5 of the plaint are replied that record shows the extra work but its approval is lacking. Learned Judge in Chambers heard the counsel, perused the record and in consideration of the letter reproduced above, though concluded that letter constitutes acknowledgment, however opined that such acknowledgment of liability was made beyond the limitation thus hit by explanation to section 19 of the Limitation Act, therefore, the claim in suit is barred by time. Mr. Naqshbandi learned counsel for appellants contends that suit is not founded on the plea of acknowledgment of liability but on the promise to make payment of admitted liability in terms of subsection (3) of section 25 of the Contract Act, which reads as under:-- "25. Agreement without consideration void, unless it is in writing and registered, or is a promise to compensate for something done, or is a promise to pay a debt barred by limitation law. An agreement made without consideration is void, unless:---- (1)
(2)
(3) It is a promise, made in writing and signed by the person to be charged therewith, or by his agent generally or specially authorized in that behalf, to pay wholly or in part a debt of which the creditor might have enforced payment but for the law for the limitation of suits." it was contended that requirement of section 23(3) of the Contract Act is not that the promise must be made to the promisor but it is sufficient to demonstrate that such promise is contained in any document in writing. Substantiating his plea, he has relied on Riasatullah v. The Tripura Modern Bank Ltd. PLD 1968 Dacca 260. He further argued that distinction is to be made in the suit based on acknowledgment and suit based on promise; in terms of sections 19 of the Limitation Act and 25 of the Contract Act respectively, which distinction was oversight by learned Single Judge. He has further placed reliance on Habib Bank Ltd. v. Shamim Qureshi PLD 1988 Karachi 481 and Pervaiz Akhtar v. The Additional District Judge Rawalpindi PLD 1990 Supreme Court.
681. It was therefore, claimed that the appellant is being deprived of his lawfully executed work and is being made to run pillar to post as a matter of personal vendetta. Mr. Ashraf Ali Butt learned counsel for respondent contends that document relied upon, as reproduced above, is a letter of acknowledgment and not promise to pay. Mr. Butt's contentions are of two folds, firstly the letter on which reliance was placed by the appellant is an acknowledgment in terms of section 19 of Limitation Act, thus barred by time, and secondly the subject letter, was not addressed to the appellant, it was issued to the executing agency, therefore, looking at the case either way the appellant is not entitled to relief claimed and the suit was rightly dismissed being barred by time. He fully supports the impugned judgment. We have heard arguments of learned counsel for the parties and perused the record. The controversy could be revolved once it is determined as to whether letter referred above could be construed acknowledgment of liability or promise to pay. The contents of the letter, reproduced Above, admittedly contain acknowledgment of liability. Outstanding liability is quantified in statement attached to said letter; therefore, there could be no cavil to the fact that there is no dispute as to the amount due and payable. What section 19 of the Limitation Act provides is that unless the liability is acknowledged during currency of limitation, it cannot enlarge period of limitation, though the liability remains but right to enforce is barred. Whereas section 25(3) of the Contract Act comes into play after the limitation expires and any person or his agent commits to pay the amount, irrespective of limitation a fresh period and independent cause accrues for the recovery of committed claim. Both the acknowledgments during the period of limitation, under section 19 of the Limitation Act and promise within the contemplation of section 25(3) of the Contract Act have the effect of giving fresh starting point of limitation. Difference between the two provisions of different status is that acknowledgment must be shown to have been made before the expiry of limitation whereas section 25(3) of Contract Act comes into play after expiry of limitation. To bring the case within the purview of section 25(3) of Contract Act, it must be shown that writing singed by a debtor or his agent to pay liability whole or in part of thereof which creditor could have enforced but for the law of limitation in suit. On reading subsection (3) to section 25 of the Contract Act it is abundantly clear that the commitment to make payment; if A extended after the expiry of limitation, it becomes independently enforceable. The plea of limitation in terms of section 19 of Limitation Act, under circumstances could not be invoked to deny such right. In Riasatullah v. The Tripura Modern Bank Ltd. PLD 1968 Dacca 260 (supra) learned Division Bench confronted with similar situation' observed at page 263 as follows: "The requirement of the section 25(3) is not that the promise itself must be in express terms but that such promise should be deducible from a written and signed document. It is clear that without written words and the signature of the promisor, there cannot be a contract within the meaning of the said section; but if the words used in writing do mean a promise to pay, or if from the said word a clear intention to 'pay can be inferred then the requirement of section 25(3) of the Act is fulfilled, if the written document is signed. The attending circumstances can be used to construe the meaning of the words themselves."
In the case of Pervaiz Akhtar v. The Additional District Judge Rawalpindi PLD 1990 SC 681 (supra) deposit of rent by tenant in Misc. Rent Case was considered as promise to pay amount; plea of limitation raised by defendant was not entertained. Privy Council in the case of Minaram v. Seth Rupchand LR 33 I.A. 165 held that "An unconditional acknowledgement has always been held to imply a promise to pay because that is the natural inference if nothing is said to the contrary". We are of the opinion that the subject letter, admittedly acknowledges the liability to the extent of the stated amount, which acknowledgement is unconditional and unequivocal, natural inference that could be drawn is promise to pay. Defence taken by the respondent that the amount could be recovered from the management that committed breach or defaulted the payment is nothing but sheer abuse of authority. The contract was not executed for personal service to the former management but for and on behalf of the Cantonment Board. Irrespective of change of management of Board, the liability cannot be shed on such frivolous ground. On examining .The case of appellant in the light of above, the letter reproduced above clearly acknowledges the liability. It is also stated that funds have been allocated. It is nothing but sheer adamancy on the part of respondent to deprive a person of his legitimate labour for the work done. It is very unfortunate that the Executive Authority firstly engage into prolong correspondence, keeps person on false hope and ultimately when time runs out jump out to take shelter behind limitation such conduct is highly deplorable. In the instant case it is not disputed that the amount due and payable is quantified amount. As against the claim of Rs.35,00,000 only a sum of Rs.10,23,904 was admitted as due and payable. It is also admitted that amount could not be paid earlier due to paucity of funds.
Amount is clearly stated to have been allocated in the budget for the budget estimate for the year 2002-03. Looking at the attending circumstances and correspondence on record, when the liability is not disputed, then in all fairness admitted amount should have been paid, instead of engaging the appellant in undesired and lengthy litigation. By denying legitimate claim, executives do not realize that they are causing double loss firstly to the rightful claimant and secondly to defend such cause incur expense that is paid out of the public fund. Public functionary is always expected to resolve petty dispute, controversy and technicalities in favour of citizenry. It may be observed that the suit for recovery of Rs.35,00,000 was filed. However, through letter reproduced above, respondent only admitted and verified a sum of Rs.10,23,904 as per schedule attached with it. Suit is accordingly decreed in said sum with mark-up at 10% from the date of filing of suit till realization.
Under the given facts and circumstances, the appeal is allowed. The application under Order XII, rule 6, C.P.C. Stands granted with cost throughout.