RASAAL HASAN SYED, J. This appeal impugns judgment and decree dated 14.4.2022 of the learned Addl. District Judge, Pindi Bhattian whereby appellant's suit under Order XXXVII, C.P.C. was dismissed.
2. Appellant/plaintiff filed a suit for recovery of Rs.14,73,500/- against the respondent/defendant on the basis of a Cheque claiming that the amount was due as price of the paddy crop purchased by the respondent. Suit was contested, issues framed parties led their respective oral and documentary evidence whereafter the suit was dismissed by the learned Addl. District Judge, vide impugned. judgment and decree dated 14.4.2022.
3. Learned counsel for the appellant submits that the impugned judgment is based on misreading and non-reading of evidence; the learned Addl. District Judge did not apply its judicial mind to the facts and evidence on record; the delay in the filing of suit was not intentional but due to the promises of respondent to return the money and also indulgence of the matter through the Arbitrators and that the liability was acknowledged which resulted in extension of limitation but this aspect was not examined in true legal perspective and that the impugned judgment is based on conjectures and surmises. Contrarily respondent's learned counsel supported the judgment and submitted that there was no written acknowledgement to claim any extension in time; the suit was filed after 10 years from the date of return of the cheque unpaid and that limitation was only for three years wherein the suit could have been filed and having not been done so the court has rightly concluded that it was barred by time and that even on merits the appellant could not prove the case.
4. Copies of the pleadings, oral and documentary evidence respectively produced by the parties in the suit, as also the arguments pro and contra have been duly considered. Perusal thereof reveals that the case of the appellant was that paddy crop was purchased by the respondent which was worth Rs.14,73,500/-, an agreement dated 31.3.2009 was executed by the respondent for the delivery of cheque in the sum of Rs. 14,73,500/. The cheque No.65095106 dated 10.5.2009 on presentation could not be encashed due to absence of amount in the bank account of respondent and that the respondent kept on promising for payment before different persons which commitment was not honored and in this backdrop the appellant claimed a decree for recovery of the suit amount on the basis of cheque. Response thereto in the written statement was that in point of fact the parties had been jointly doing business in which certain losses occurred, for settlement of account cheque in question was issued which was later returned by receiving cash payment out of bank and that a false criminal case was registered which was dismissed and the respondent was acquitted by Court and that the suit was barred by time as such being not maintainable.
5. Oral evidence of the appellant comprising of P.W.1 Manzoor Ahmad appellant, Munawar Hussain P.W.2, Sana Ullah P.W.3, Aurangzeb P.W.4 were to the effect that the amount was payable against the cheque towards price of paddy crop and that despite commitment respondent did not make the payment. Another witness Amir Javed of The Bank of Punjab was produced as P.W.5 who tendered copy of cheque Ex. P-1 and memo dated 06.7.2009 by which the cheque was returned unpaid. In defence respondent appeared as D.W.1 and reiterated the plea raised in the written statement that the payment was received against the cheque in cash by appellant and that the cheque was returned to the respondent who had destroyed the same. The learned Addl. District Judge after in-depth consideration of evidence, dismissed the suit on merits and also on the ground of limitation.
6. The suit filed by the appellant was under Order XXXVII, C.P.C. for recovery of the cheque amount.
It was based on the plea that the cheque was issued for the payment of price of paddy crop which was confirmed in the agreement dated 31.3.2009 (Ex.P2). Perusal of the agreement Ex.P2 shows that the post-dated cheque No.65095106 dated 10.5.2009 drawn on account No.0005630007 of The Bank of Punjab, Jalal Pur Bhattian Branch in the sum of Rs. 14,73,500/- was delivered which was to be encashed on the given date and in case of its non-encashment the appellant would be entitled to initiate legal proceedings for the recovery thereof. Pursuant to the agreement the cheque was presented to the Bank and was returned vide memo dated 06.7.2009 (Ex.P3) due to absence of funds in the account. Original cheque was not produced in evidence which fact was admitted by the appellant as P.W.1 in his cross-examination who took the plea that it was delivered to police.
Strangely enough, none of the police officials was summoned to corroborate the plea of alleged delivery of cheque which fillips adverse inference against the respondent. Even otherwise the non- production of original cheque in evidence raises serious question as to the maintainability thereof under Order XXXVII, C.P.C. Be that as it may, the learned Addl. District Judge dismissed the suit mainly on the ground that it was barred by time.
7. Suit under Order XXXVII, C.P.C. could be filed within three years from the date the amount become payable in terms of section 64-A of Limitation Act, 1908 as reproduced hereunder: Description of suit Period of limitation Time from which period begins to run [64. A Under Order XXXVII the Code of Civil ProcedureThree years When the debt become payable.] Bare reading of the plaint, oral evidence and particularly the agreement Ex.P1 leaves no room for doubt that the amount of Cheque dated 10.5.2009 i.e. Rs.14,73,500/- was committed to be paid by the given date through post-dated cheque and it was clearly mentioned that in case the cheque was not encashed the appellant will be entitled to initiate legal proceedings against the respondent. The date of agreement dated 31.3.2009 the due date of cheque was 10.5.2009 it was presented for payment and was returned unpaid on 06.7.2009. As per agreement and also the date of cheque, the amount was payable and became due on 10.5.2009 but even if the date on which the cheque was presented and returned unpaid due to lack of funds in the bank account of respondent dated 06.7.2009 vide memo Ex.P3 is taken into consideration the amount has become recoverable both as per date of cheque and also as per date of refusal of payment and suit could therefore, be instituted within three years till 05.7.2012 in terms of section 64-A of Limitation Act, 1908 which having not been tiled on the face of it was barred by time. Reference can be made to rule in Muhammad Jan and others v. United Bank Ltd. (1987 CLC 1215) and Basharat Ali v. Riaz Noon (2019 YLR 2601). In the Basharat Ali it was observed that the summary suit under Order XXXVII, C.P.C. could be filed within three years from the date when the payment of cheque become due in terms of Article 64-A of the Limitation Act, 1908 and the date on which the cheque was dishonored would be the date on which the debt would become payable. In the instant case the suit was filed on 04.1.2020 i.e., after ten years and, being so, the learned Addl. District Judge, therefore, correctly observed that the suit was barred by time.
8. As to the plea of acknowledgement, the same is fallacious. It is discernible from the pleadings and also the oral evidence produced by the appellant that there was no written acknowledgement of debt by the respondent after the expiry of limitation. Section 19 of the Limitation Act. 1908 contemplates that where before the expiration of the period prescribed for a suit or application in respect of any property or right, an acknowledgment of liability in respect of such property or right having made in writing signed by the parties, against whom such property or right is claimed, a fresh period of limitation shall be computed from the time when the acknowledgment was so signed. Explanation-2 of section 19 of the Limitation Act, 1908 provides that for the purpose of the said provision the term "signed" means signed either personally or by any agent duly authorized in this behalf. It is admitted fact that the cheque was dishonored on 06.7.2009 when the amount claimed became payable and the appellant had the right as per his own showing to file a suit for the recovery thereof within three years which would have been expired on 05.7.2012. In terms of subsection (1) of section 19 of the Limitation Act, 1908 an acknowledgement of liability in respect of right should have been made in writing, signed by the parties against whom such right is claimed and thereafter a fresh period of limitation could be computed from the date when such acknowledgement was signed. It is discernible from the record that the appellant does not claim any acknowledgement in writing on the part of the respondent nor did he append or tender in evidence any such acknowledgement. Law does not recognize any oral acknowledgement of liability so as to claim benefit, of section 19 of Limitation Act, 1908. There being no written acknowledgement the plea of alleged extension of limitation was totally unwarranted and was correctly rejected. Suit having been filed after ten years from the date when the amount was due was barred by time was rightly dismissed as such. No misreading or non-reading of evidence or any error of law or jurisdiction could be pointed out. The view taken by the learned Addl. District Judge being in accordance with law no ground is made out for interference.
9. Resultantly, this appeal being devoid of any substance is dismissed.