ORDER GULZAR AHMED, J. - By this appeal, the appellant has challenged the order dated 09.12.2009 of the learned Judge Banking Court No. IV at Karachi by which the Suit No. 280 of 2008 filed by the appellant against the respondent for recovery was dismissed as time-barred.
2. Learned counsel for the appellant has contended that through order dated 19.10.2009 the Banking Court had dismissed the application for leave to defend the suit filed by respondents and proceeded to make an order that suit in terms of Article 50 of the Limitation Act is barred and plaintiff counsel was directed to satisfy the Court about limitation period. He has contended that the appellant with the plaint has also filed a letter dated 19.7.2006 of the respondent in which the respondent has specifically acknowledged the liability to the appellant and has informed 2012 Ms. S.M.E. Leasing Ltd. V. M/s. Umar Knitting, Karachi C.L.753 the appellant that it has decided to clear the dues by selling the machineries and winding up of the business. He has contended that this letter of respondent amounts to acknowledgment in terms of Section 19 of the Limitation Act, 1908, upon which fresh limitation commenced and the suit was filed on 14.11.2008 was within three years period from the date of such acknowledgement and the suit was filed in time. He has contended that learned Banking Court has altogether omitted to consider this document which was available on the record. In support of his submission he has relied upon the case of HUKUMAT SING KUNDANMAL v: NENUMAL BEJHUMAL (AIR 1928 Sindh 45), HARCHANDRAI v. THE POPULAR METAL WORKS, GUJRANWALA & 2 OTHERS (PLD 1971 Karachi 925) and PAKISTAN v. M/s. AMEEJEE VALEEJEE & SONS & ANOTHER (PLD 1978 Karachi 244).
3. On the other hand, counsel for the respondents has not disputed the fact that letter dated 19.7.2006 is part of record of the Banking Court but has contended that this letter does not amount to valid acknowledgement and that no demand is made by the bank on the basis of which acknowledgment can be made by the respondents. In support of his submissions he has relied upon the cases of UNITED BANK LIMITED, STOCK EXCHANGE BRANCH, LAHORE v. S. KHALID HAKEEM (2002 CLD 1275), PAKISTAN INDUSTRIAL CREDIT '& INVESTMENT CORPORATION LIMITED v. ARIF NOOR (2009 CLD 1428), SUALEH SONS (PRIVATE) LIMITED v KARACHI DEVELOPMENT AUTHORITY (1997 CLC 893), BEHLOL v.' QUETTA MUNICIPAL CORPORATION (1997 SCMR 536) and. SYED MUHAMMAD RAFIQ SHAH v. SYED FIDA HUSSAIN SHAH (2003 MLD 966).
4. It seems that the respondent have obtained on lease from the appellant certain machinery in the sum of Rs. 3 millions and agreed to pay the lease money in 36 monthly instalments. The respondents having committed default in payment of instalments, the appellant filed suit for recovery of Rs. 2,169,060/- against the respondents in the banking jurisdiction. The respondents filed application for leave to defend the suit which was dismissed vide order dated 19.10.2009 and the matter was kept for plaintiff to satisfy the Court whether the suit is in time. Through impugned order the Court has dismissed the suit being time-barred on the basis that the statement of account shows that respondents have paid last instalment on 19.3.2005 whereas the suit is filed on 14.11.2008 which is beyond three years' period.
5. There is admittedly a letter dated 19.7.2006 of the respondents addressed to the appellant at page 141 of the appeal which was also part of the suit before the Banking Court. The contents of such letter are as follows:- "With reference to above cited subject, one again it , is to be bring in your kind attention that we are willing to wind up our business and pay off all the dues of lease facility due to sever set backs in the business in terms of down word trend of orders and heavey claimed from the clients as I have informed already in my letter No. 005 on 15th October, 2005. In this period of crises we tried our best to overcome these problems and to bring the business on its regular previous position and we were succeeded to do so but during this I got ill. Doctors have recommended bed rest of one month and operation. Due to which I will not be able to work for a long time after my operation.
Therefore, I have decided to clear the dues by selling out the machineries and winding up my business. For this purpose I required your permission letter to sell out the machineries as soon as possible so that the lose ratio can be minimized on both ends, and I want the relief in the payment because the value of machinery is not such that I can pay you off all my dues after selling these machines and I am not In the position to pay off all your liabilities so that the lose ratio can be minimized on both ends.
Looking forward for your kind and quick response."
6. There is no dispute on the fact that the respondents have availed finance facility from appellant, thus the appellant and the respondents have relationship of a banker and customer. There is jural relationship for respondents to write letter dated 19.7.2006 to the appellant. On the very reading of the said letter, it establishes the factum that the respondents have obtained lease facility from the appellant and it has outstanding dues from the said facility which it intends to clear by selling machineries and winding up the business. This letter in clear terms acknowledges liability of the Respondents to the appellant and squarely falls within the provision of Section 19 of the Limitation Act. Reference is made to the case of PAKISTAN v. MESSRS AMEEJEE VALEEJEE & SONS & ANOTHER (PLD 1978 Karachi 244) and HARCHANDRAI v. THE POPULAR METAL WORKS, GUJRANWALA & 2 OTHERS (PLD 1971 Karachi 925).
7. The learned Judge Banking Court has altogether omitted to take into consideration this letter of the respondent dated 19,7.2006 which is not oNly within the limitation period from the date of last deposit of instalment on 19.3.2005 but is an acknowledgement of liability in writing by the respondent towards the appellant giving rise to the fresh period of limitation in terms of Section 19 of the Limitation Act; Suit having been filed on 14.11.2008 will not be time- barred but will be in time.
Such position is apparent from the record and it does not require in-depth study.
8. We have gone through, the case-law relied upon by the counsel for the respondents and find the same either to be distinguishable from the facts and circumstances of the present case or altogether not applicable to it. In view of the above discussion, we are satisfied that the suit of the appellant was not time-barred rather It was ^within limitation period and the impugned order of learned Judge Banking Court suffers from grave misreading of the record.
9. After hearing the counsel for the parties, through short order of today we have allowed this appeal, set aside the impugned order and remanded the matter to the Trial Court for deciding the suit afresh. Above are the reasons for the said short order.