SYED SAJJAD HASSAN SHAH, J.---Haji Nasim Ahmed Ansari, Managing Director Allied Engineers (Pvt.) Limited, the appellant-plaintiff (hereinafter to be referred as appellant) filed a suit against the respondents- defendants (hereinafter to be referred as respondents) seeking for the grant of decree for the recovery of:--
(A) Rs.3,85,213 or whatever amount is found payable by the defendants and recoverable by the plaintiff after rendition of accounts plus interest at the rate of 25% per annum till the actual recovery of the amount;
(B) Rs.25,00,000 towards damages sustained by the plaintiff, both mentally and physically due to non-payment of the amount as per prayer A above.
2. The appellant averred in his plaint that his Firm known as "Allied Engineers (Pvt.) Limited" is registered one and a contract was awarded to his firm in the month of June, 1982 for construction of the Office Building of Customs Collectorate at Jumrud Road, Peshawar. The construction work was started in the said year as per the provisions of the contract agreed upon by both the parties, but the work could not be accomplished within the stipulated period of two years on account of paucity of funds but later on the entire construction work of the Project was completed and the possession of the building was handed over to the respondents on 15-12-1985.
3. It is further averred by the appellant that when the construction of the Project reached to the lintel level, the respondents changed the drawings/designs of the aluminum doors, windows and ventilators and the appellant was directed to provide/fix deluxe type of aluminum doors, windows and ventilators with tinted glasses. According to the appellant, it was not provided in the contract that during the course of construction, the respondents can change or alter the drawings/designs of the building or can suggest the alteration. The appellant asserted that there was a hell of difference in between the prices of material prevailing in the year 1982 and the year 1983 when the alteration was suggested.
4. On demand of the appellant that the prices of the material quite different as were in the year 1982, therefore, the amount of the contract be fixed, at the level of rates not prevailing at the time of execution of contract/agreement but in accordance with the market rates of 1983 to which they agreed. The respondent No.4 verbally approved the rates of extra and substituted items as Rs.225/-, Rs.180/- and Rs.170/- per Sft respectively.
5. It is further asserted that on the verbal assurance and the commitment made by the respondent No.4, the appellant executed the extra and substituted items accordingly. It is further averred that the respondents have promised that they would obtain the approval of enhanced rates from the Competent Authority before the payment of final bill, however, the commitment has not been honored and the payment was made from 6th to 16th running bills at the rate of Rs.81/- per Sft.
6. The respondents had not expressly refused the payment of the disputed amount to the appellant. The dispute was lingering on behalf of the respondents. The appellant approached to the Hon'ble Wafaqi Muhtasib for resolving the dispute and payment of outstanding dues against the respondents, however, no action was taken and the appellant was directed vide judgment and order dated 27-8-1997 to seek his remedy from the appropriate forum, hence, the appellant filed the instant suit. The suit was contested by the respondents by filing their written statement, wherein, they have refuted the claim of the appellant and averred that they have paid the entire dues of the appellant and nothing is outstanding against them. The learned Trial Court framed issues arising out of the divergent pleas of the parties raised in their respective pleadings. Both the parties have produced their pro and contra evidence as they wished to adduce. The learned Trial Court while seized of the matter dismissed the suit of the appellant, hence the present appeal.
7. The learned counsel for the appellant contended that the respondents made a verbal commitment for the payment of disputed amount, as at their assurance the appellant completed the construction work as per the changed drawings/designs and this fact has also admitted by the respondents in their written statement, as such, the appellant is entitled for the decree as prayed for. The learned counsel for the appellant argued that the suit filed by the appellant is within time and the learned Trial Court erred in holding that the suit filed beyond the period of limitation. He further argued that the case of the appellant falls within the provisions of sections 19 and 25 of the Contract Act, because after acknowledging the claim of the appellant by the respondents, the period of limitation deemed to have extended by the respondents, therefore, the suit filed within time.
8. The learned counsel for the respondents contended that the suit filed by the appellant for the recovery of amount spent on fixtures is duly paid. None of the terms and conditions of the agreement are violated by the respondents. The suit of the appellant is hopelessly time barred, because according to the statement of the appellant the construction work was completed in the year 1985, whereas, the recovery suit of alleged amount and for seeking the damages filed on 19- 9-2000, much after the expiry of limitation period. In this regard, he referred the order of Hon'ble Wafaqi Muhtasib, which was also passed on 27-8-1997, thus, the suit filed by the appellant is rightly dismissed by the learned Trial Court. He further argued that nothing has been brought on record in black and white that the alleged extension in time of payment was acknowledged by the respondents and the offer was accepted by the appellant, in as much as, no credible, impartial and independent oral evidence is available on record that when such oral agreement was made by the parties to the suit. He further argued that the appellant did not appear in person before the court to stand the test of cross examination, however, one ,Mousa Khan, Special Attorney was examined on his behalf. The learned counsel supported the judgment and decree passed by the learned Trial Court and prayed for dismissal of the instant appeal.
9. Viewing the record of the case it transpired that the appellant has miserably failed to meet the objection of limitation as embodied in issue No.2. The appellant took the plea that time and again, he had been informing to the respondents 'about the payment of his outstanding dues but the same were not paid, however, on each and every demand they have been promising, to pay the outstanding amount In this regard, the correspondence made by the parties has been placed on record. The same has neither comes within the scope of acknowledgement nor those documents have been relied upon by the attorney of the appellant during the course of his examination as witness in the Court on behalf of the appellant. Even if, we consider those documents, there is no promise to pay the disputed amount on some specific date or period and no offer and acceptance proved to have made. Moreso, the essential requirements of acknowledgment as described under sections 19 and 25 of the Contract Act, 1872 are not available to the appellant, so as to curtail the period of limitation. In this context, the relevant provision of section 25 (3) of the Act ibid are as under:-- Section 25......................................................... (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.
10. In explanation "e" of section 25 of the Act ibid, the provisions of above quoted section are further emphasized, which runs as follows:--
(a) .................................................................................................
(b) .................................................................................................
(c) .................................................................................................
(d) .................................................................................................
(e) A owes B. Rs.1,000, but the debt is barred by the Limitation Act. A signs a written promise to pay B RS.500 on account of the debt. This is a contract.
11. Keeping. In view both the above mentioned provisions of law, it is crystal clear that whenever the suit is barred by the Limitation Act, the acknowledgement is not acceptable in any other mode unless, it is offered by one party and accepted by the other and reduced into writing and duly signed by both the parties then it forms a valid contract, because it contains a promise to pay wholly or in part on the stipulated date or period mentioned therein, as it expresses an intention to pay which can be construed to be a promise within the meaning of the above section. According to the provision of above subsection, the old date is not revived, but it is considered to be a good consideration for the promise to pay, this amounts to a new promise to pay the debt to the creditor and this is a sort of measure of his right. Where there is nothing in writing and just a promise to pay for a time barred debt, it would not be considered as good consideration and also that there is novation of contract in the shape of promise to pay under which fresh consideration passes from the promisee and there is on the part of the promisor, the receipt of such consideration as well as a promise to pay for a time barred debt, thus, on fulfilment of afore-stated two requirements of law, amounts a valid agreement, even if, the previous debt has been barred by time. In such eventuality, the appellant can enforce his right of recovery of his outstanding dues, if otherwise, proved by cogent and convincing evidence. So in the light of above, the appellant cannot claim the benefit of above mentioned law as there is no evidence to substantiate his contention.
12. It is further agitated that the respondent No.4 agreed verbally to provide the expenses to be incurred for fixing the fixtures as per changed/altered drawings/designs. The verbal direction would not amount a condition to the agreement under which the work was accomplished unless the agreement is duly amended by adding any fresh condition. In absence, whereof, the appellant is restrained under the law and rules of business of the government department that no verbal direction for raising construction under the control of government functionaries would be acceptable unless the work is done in accordance with the terms and conditions as prescribed in the agreement. The government would not be under any legal constraint to pay the said amount because mere verbal order of the respondent would not amount, the promise made on behalf of the government department unless it is duly made in writing and sanctioned accorded by the Competent Authority, the same is lacking in the instant case, as we have scanned the entire evidence but no iota of evidence available on record that the appellant incurred the expenses in construction work as per the requirements of law. If any officer of the department verbally passed the direction without the sanction of higher authority; it is within the right of the appellant to claim such amount in his private capacity but not being an officer / official in his official capacity.
13. In view of the above, the appellant has not succeeded to prove his case as per requirements of law. The judgment and decree passed by the learned Trial Court is neither suffering from any misreading or non-reading nor any illegality or violation of law is pointed out, therefore, the judgment and decree passed by the learned Trial Court is maintained being in accordance with law.
14. This appeal is hereby dismissed with no order as to costs.