RASAAL HASAN SYED, J.---This appeal under section 22 of the Financial Institutions (Recovery of Finan ces)
Ordinance, 2001 (the "Ordinance ") impugns the judgment and decree dated 28.1.2008 passed by learned Single Judge-in-Chambers of this Court under the 'Banking Laws.
2. Facts in brief are that the appellants instituted a suit for declaratibn with manda tory injunction in consequence, for the credit of amount in issue with interest and costs against the respondent bank, leave was granted on application of the bank, issues framed including an issue on limitation; 'evidence was lead; whereafter the learned Single Judge dismissed the suit as being barred by time.
3. Learned counsel for the appellants argued that the learned Single Judge-in-Chambers seriously erred in law in concluding that the suit was time-barred and that, in fact, the suit was well within time and ought to have been decided on merits.
4. Perusal of record reveals that the appellant initially filed a suit to recovery of Rs. 32,07,520/- and interest and damages against the respondent bank before Special Judge Banking Court, Lahore on 25.2.1996, later an application for amendment of plaint under Order VI, Rule 17, C.P.C. was allowed on 22.3.1995 subject to costs; amended plaint was filed on 26.3.1999 and on 27.3.1999 the learned Special Judge Banking Court observed that on amendment of the plaint and the relief claimed; the valuation of subject-matter of suit exceeded its pecuniary jurisdiction and the suit could thereafter be tried by this Court in its Banking Jurisdiction. The plaint was accordingly returned on 27.3.1999 for presentation before this Court in its Banking Jurisdiction. The same was presented on 19.4.1999. Application for leave to defend was allowed vide order dated 07.7.1999, written statement was filed and issues were framed on 19.10.1999 whereafter the parties led oral as well as documentary evidence. The learned Single Judge-in-Chambers, hearing the suit on banking side recorded his findings only on issue No.1 and concluded that the suit was barred by time. The view taken was that the period of limitation prescribed for the declaratory suit was six years from the accrual of cause of action and that the starting point of limitation, if taken from the date of knowledge, would lapse on 03.3.1999. It was observed that takin g the starting point of limitation either from the withdrawal of earlier suit or from the date of knowledge, the period of six years had expired when the suit was filed; in view thereof, assum ed that the suit was barred by time. Findings on other issues were not recorded after rending findings on issue of limitation in result the suit was dismissed. It is observed that the learned Single Judge-in-Chambers also took into consideration the provisions of section 14 of the Limitation Act, 1908 as well as the amendment made through an application in the original suit and observed that the acts of the appellant were not in good, faith.
5. Deeper consideration of the reasoning as prevailed upon the learned Single Judge-in-Chambers in the light of the facts of this case, manifests that the view taken in the impugned judgment for the assumption of suit being barred by time, is based on incorrect perception of fact and also incorrect application of provision of Limitation Act, 1908 regulating the filing of suit for declaration. It is obvious from the plaint that the dispute raised therein was that illegal encashment was made by the bank of the Foreign Currency Deposits and that on acquiring knowledge the matter was protested with the authorities who did not agree for the reversal thereof. In pars 10 of the plaint the appellant claimed that on 03.3.1994 the appellant received an Account Statement of their Foreign Currency Deposit Account and from the said statement it transpired that an unauthorized debit had been made on 08.7.1993 and 12.7.1993 without the instructions of the plaintif f. In para 23 of the plaint it was asserted the cause of action accrued on 08.7.1993 when unauthorized and illegal encashment was made without the knowledge of the appellant and thereafter on 23.10.1993 when the defendant No.2 failed to inform properly in the office and thereafter on 16.4.1994 when the defendant refused to reverse the unauthorized and illegal encashment of the Foreign Currency Deposits. The suit was instituted in this Court on the banking side on 19.4.1999 which was fixed for hearing for the first time on 20.4.1999. The suit being for declaration with consequential relief was to be regulated by Article 120 of Limitation Act which provides for a period of six years from the accrual of right to sue.
The rules as interpreted consistently is that under Article 120 of Limitation Act the, transaction could be challenged within six years from the date of knowled ge and the transaction or the act of which the plaintif f is aggrieved of. In the instant case, the appellant claimed in para 10 of the plaint that copy of their Statement of Foreign Currency Deposit Account was received on 03.3.19 94 when knowledge was acquired that account had been debited without authorization on 08.7.1993 and 12.7.1993. It appears that the issuance and delivery of statement of account was not seriously contested. Taking the date of knowledge from 03.3.1994 the suit could be filed within six years i.e. till 02.3.2000. Even if the dates of disputed debit are kept in view which were 08.7.1993 and 12.7.1993 respectively , the period of six years would have expired on 07.7.1999 or 11.7.1999 while the suit was filed on 19.4.1999 as also considered in the impugned judgment. Being so, the suit was well within time even if the commencing date is taken as 08.7.1993 or 12.7.1993 or it is calcula ted from the date of knowledge i.e. 03.3.1994. In whatever manner the conclusion of limitation is made, the suit within time. Reference in this regard can be made to the case of "Laloo and another v. Ghulaman" (2000 SCMR 1058 ). The view taken by the learned Single Judge-in-Chambers appears to be based on miscalculation and misreading of the record.
6. As regards the other factors which were taken into account by the learned Singl e Judge-in-Chambers, the same were neither relevant nor material nor the perception as to the scope of section 14 of Limitation Act appears to be based on correct analysis of the legal provision. In the first instance under section 14 of Limitation Act, 1908 has no application in so far that it was not a case where a party claimed that the suit was filed in good faith before a court which due to lack of pecuniary jurisdiction could not grant relief. Rather it was a case where the first suit was filed in the Banking Court which keeping in view the original valuation of the suit had the pecuniary jurisdiction to entertain and decide the suit as the same was within its jurisdiction of pecuniary jurisdiction. It was only when the amendment in the plaint was allowed that the valuation for jurisdiction was modified; in result, the amended value exceeded the pecuniary jurisdiction which necessitated the return of plaint for presentation to the court which will have the jurisdiction keeping in view the amendment valuation of the suit. This being so, neither section 14 had application nor the circumstances attracted its application to the facts of the case and therefore, there was hardly any reason to move an application for the exclusion of the period consumed in the proceedings before the Banking Court. Even otherwise, the instant suit out of which this appeal arises itself was instituted on 19.4.1999 while the limitation was likely to expire either on 02.3.2000 being six years from the date of acquisition of knowledge or 07.7.1999, 11.7.1999 i.e. the dates for illegal debit from the account and considering the limitation from any of the three dates the suit was instituted within six years hence the findings recorded on issue of limitation being based on the misreading of the record, misinterpretation, misapplication of law, are reversed and the suit is held to be within time.
7. Since the learned Single Judge-in-Cha mbers did not record his findings on the other issues and dismissed the suit on preliminary point of limitation, therefore, in terms of Order XLI, Rule 23, C.P.C. the case needs to be remanded for decision of the first court on the other issues as the evidence has already been produced by both the parties.
8. In result this appeal is allowed , the impugned judgment and decree is set aside, and case is remitted to a Single Bench of this Court for decision of the suit afresh after recording findings on the rest of the issues pertaining to the merits of the case.