ABAID ULLAH KHAN, J:-This appeal against the judgment and decree of the learned Civil Judge, Sargodha, dated the 6th June, 1985, directing payment of Its. 1,97,844 with interest at bank rate plus costs of the suit to be made by the appellant to respondent 1 arises out of the following circumstances. The appellants, Zila Council, Sargodha, gave contract of upgradation and repair of Chak 46-87/S.B. Road, from 12 to 17 miles, to respondent 1, M/s Muhammad Siddique and Company, Sargodha. The terms and conditions of the contract are incorporated in the deed dated the 29th October, 1975, whose copy is Exh D 6. The appellant, on its part, paid the final bill to respondent 1 on the 16th April, 1977. However, respondent 1 applied to the appellant and respondent 2, Province of Punjab, on the 20th April, 1976, that payment in respect of certain works executed by it had not been made and demanded such payment. Having failed to receive any favourable response respondent 1 sent through his lawyer notice (copy Exh D 2) under section 80 of the Code of Civil Procedure to the appellant and respondent 2 asking for payment of its outstanding dues as well as interest at the rate of 12 per cent per annum. Respondent 2, in its reply of the 27th October, 1977, Exh D 5, refuted respondent 1's claim and said that nothing was due to it.
2. On the 22nd May, 1980, respondent 1 instituted suit against the appellant and respondent 2 for recovery of Rs. 2,13,577.40 which amount it alleged was due on account of the work which it had done and for which it had not been paid. It also prayed the Court for allowing interest at the rate of 12 per cent per annum on the suit amount. Though the appellant contested the suit respondent 2 did not choose to put in appearance and consequently was proceeded against ex parte. Apart from resisting respondent 1's claim on merits the appellant pleaded limitation and estoppel. The learned trial Court was not favourably impressed by the pleas of estoppel and limitation and on the basis of the appellant's own admission. Contained in the letter of its Chairman addressed to the Secretary to the Government of the Punjab, Local Government and Rural Development Department, copy Exh P 1, decreed the suit as mentioned in the beginning of this judgment. Feeling aggrieved the appellant has approached this Court in appeal.
3. The learned counsel for the appellant contended that respondent 1 could have brought suit within three years of the date of payment of final bill, which was the 16th April, 1977, and that the suit filed on the 22nd May, 1980, was out of time. The deed of contract (copy Exh D 6) does not lay down terminus a quo for bringing a suit. Respondent 1, soon after receiving payment of final bill, started agitating that it had not paid in respect of certain other works which it had carried out and demanded payment in respect thereof. Respondent 2's reply, Exh D 6, denying liability in respect of extra payment was sent on the 27th October, 1977. The suit was instituted within three years of the aforesaid refusal and was well within time.
4. The contention of the learned counsel that since respondent 1 had signed entries in the measurement book it was estopped from demanding, extra payment can be accepted only with a grain of salt. Muhammad Siddique, partner of respondent 1, made it clear, in his statement as DW 1, that he had been paid less in running bills and that more was due to him. Estoppel does not come in to prevent respondent from asking what is legitimately due to it.
5. As is apparent from his letter, copy Exh D 1, the Chairman of the appellant council got a thorough check made of the records by the District Engineer and Accounts Officer and it was found that Rs.
1,97,844.00 were due to respondent 1. The Legal Adviser of the appellants' council was also of the opinion that the said amount should be paid to respondent 1. Respondent 1 was content with the receipt of Rs. 1,97,844 in satisfaction of its claim. In such a situation the learned trial Court was justified to decree the suit in the sum of Rs. 1,97,844. As the appellant had withheld payment of the amount in dispute for a considerable length of time for no justifiable cause the judgment-debtor had been rightly burdened with the payment of interest. The appeal is found to be without any force and is dismissed with costs.
H.B.T/Z-104/L