' FAZAL UR RAHMAN, J.---This appeal under section 39(11) of the Industrial Development Bank of Pakistan Ordinance, 1961 (hereinafter called as Ordinance) is directed against the order dated 23- 6-2000 passed by the learned District Judge (ad hoc), Quetta, whereby the order ad-interim attaching the property made on 2-4-1997 was confirmed and the recovery was ordered to be effected according to the provisions of law. The order of the said Judge dated 10-4-2000, setting aside the objection on behalf of the appellants has also been challenged.
2. Briefly stating the facts of the case are that respondent-Bank filed a petition under section 39 of the said Ordinance against the appellants and private respondents for recovery of Rs,50,94,054.30 with other charges and interest. It is stated that the respondent No,1 extended foreign currency loan facility equal to Pak rupees 6,66,000 to Messrs Ali Woollen Mills (Pvt.) Ltd. Registered under the erstwhile Companies Act, .1913 having its Head Office at Sirki Road, Quetta (now wound-up) on terms and conditions of the loan duly incorporated in a Credit Agreement executed on 22-8-1970 and also the respondent-Bank advanced a loan of Rs,3,91,000 in the year 1973 to the aforesaid company and terms and conditions of such advance loan are contained in a Credit Agreement dated 15-6-1973 executed between the wound-up company and the respondent-Bank. It is stated that in addition to such agreements, the parties also executed various other legal documents in respect of the abovesaid loan but the said wound-up company failed to meet with its repayment obligations as against the outstanding loans, consequently, the respondent-Bank and the other creditors had filed winding-up petition in this Court (J. Miscellaneous No,5 of 1988) wherein, order dated 3-8-1989 for winding-up of the company was passed. Pursuant to such order, the official liquidator and the respondent-Bank made all out efforts to sell the project property for maximum price through bidding/negotiation and finally official liquidator sold the property for Rs,5.540 Million, but the sale proceed was short even to liquidate the respondent's claim who statedly was the only secured creditor, as such the above mentioned amount was paid to the respondent-Bank on 28- 9-1991. It is further stated that the respondent-Bank claim as it stood at the time of filing of the claim i,e, 30-9-1988 was Rs,7.27 Million which increased to Rs,8.592 Million as on 31-3-1991, therefore, after adjustment of the sale proceeds as above mentioned, an amount equivalent to Rs,50,94,054.30 (rupees five million, ninety four thousand and fifty-four paisa thirty only) was still due as the liability against the appellants and private respondents who for the loan liability furnished surety and executed letters of guarantee on 22-8-1970 and 15-6-1973 binding themselves jointly and severally in personal capacity, undertaking and guaranteeing for the due payment of the credits/loan advances to the wound-up company alongwith interest, charges, commission, costs and expenses thereof, which are biding on the heirs, executors, administrators and legal representatives of the appellants and private respondents but they statedly avoided to discharge their liability and have refused to adjust/repay the same despite repeated requests and legal notice dated 12-5-1996. The respondent-Bank has also given the details of the landed property owned by the appellants and private respondents.
3. On the above mentioned averments the respondent filed petition under section 39 of the said Ordinance in the Court of District Judge, Quetta on 25-9-1996 and thereafter on or about 1-4-1997 the same was transferred to the file of Additional District Judge-I, Quetta. The learned Additional District Judge-I, Quetta on 2-4-1997 passed ad-interim order regarding attachment of the property which was indicated in para. 8 of the petition and the appellants and private respondents were called upon by means of notice, directed to be issued to them to show cause as to why the ad- interim order of attachment of property may not be confirmed. On 7-6-1997 an application for deciding preliminary objections and recalling order dated 2-4-1997 was made. The learned Additional District Judge-I, Quetta was however pleased to pass an order to the extent that till disposal of the said application attachment warrant be not issued. The case was then transferred to the Court of learned Additional District Judge-IV, Quetta some times in the month of June, 1997 and ultimately the same was transferred to the file of District Judge (ad hoc), Quetta. It is pertinent to note that another application for deciding preliminary objections and recalling order dated 2-4- 1997 was also filed on 5-9-1997 on behalf of respondents Nos,1 to 3 in the petition. The learned District Judge (ad hoc), Quetta while disposing of the said application vide order dated 23-5-1998 directed that the suit be returned to the respondent No,1 for presentation to the competent Court of law for want of jurisdiction and simultaneously the ad-interim order passed on 2-4-1997 by the learned Additional District Judge-I, Quetta was also recalled. The said order was challenged by the respondent-Bank by filing Constitutional Petition being No,268 of 1998. The petition was allowed by this Court by setting aside the said order and the case was remanded to the learned District Judge (ad hoc), Quetta with the direction to proceed with the matter in accordance with the provisions of the said Ordinance on its own merits through judgment dated 31-5-1999.
4. Feeling aggrieved the appellants then challenged the order of this Court before the Honourable Supreme Court of Pakistan. The Honourable Supreme Court on 30-7-1999 made the following observations:- "Learned counsel for the petitioners submitted that according to the statement of accounts the amount in dispute was being recovered on the basis of exercise of right of reverse which right was not available to the respondent, therefore, the proceedings on account of this for recovery of the amount before District Judge under section 39 of IDBP Ordinance, 1961 were not maintainable, as the same amount would not be deemed to be due under the said Ordinance.
' The petitioners in the first instance should avail this objection before District Judge, who shall decide the same before proceedings to pass an order to take coercive measures."
5. The District Judge (ad hoc), Quetta while disposing of the objection as per direction of the Honourable Supreme Court after hearing the arguments observed that no such objection was raised in the rejoinders submitted by the appellants. It is also stated that the respondent-Bank is competent to recover the amount which was written off subject to limitations imposed by the law for the time being enforced and applicable to the recovery, the trial Court accordingly set aside the objection vide order dated 10-4-2000. The District Judge (ad hoc), Quetta on 23-6-2000 passed the impugned order and concluded in the following terms:- "The order of Honourable High Court was challenged before Honourable Supreme Court in which the Honourable Supreme Court directed the respondents to first avail their objections specifically for right of reverse before this Court and no further step was allowed. Now can this Court go beyond the directions of Honourable Supreme Court, the answer obviously would be negative.
Before Honourable Supreme Court the petitioner raised only one objection and that when the amount has been written off it cannot be revived. It has been observed that word right off has been wrongly written and it was write off. On the objection of the counsel for the petitioner statement of account was called and the objection was confronted as when entries have been shown as nil in the statement of account, how and on what basis the suit for recovery was filed. The counsel for the petitioner submitted that after referring the outstanding dues to the headquarter for the recovery by way of suit, the statement on account has always been shown as nil, but it does not mean that outstanding dues were written off.
' The counsel pointed out limitation period in respect of recovery, but I am in conformity with opposite counsel that this objection was not taken into consideration by the Honourable High Court as well as Honourable Supreme Court, therefore, at this stage it cannot be agitated that suit for recovery is barred by limitation particularly in view of section 39(A) of the Ordinance. The objections raised in the arguments are subsequent thought, and have been taken up in piecemeal.
The objection which was raised before Honourable Supreme Court was the right of reverse which has been discussed above. The learned counsel submitted case-law in respect of recovery of bank loans, which are not applicable under the circumstances and facts of this case.
' The counsel for the respondents raised another objection that in view of impediment provided under section 134 of the Contract Act the surety cannot be held liable for any charge against a debtor after prescribed period of limitation. Although learned counsel has himself admitted that this period will be started when IDBP has written off or waived the debts against a principal debtor, as has been discussed above outstanding dues have never been written off, therefore, the provisions of section 134 of the Contract Act will not come in operation, resultantly the citation of case-law on this score is not applicable in this case.
' It is, therefore, held that order passed by this Court on 2-4-1997 was right and after due consideration of the facts on record and in rebuttal the respondents could not provide any substantial material, therefore, the order passed by this Court on 2-4-1997 is hereby confirmed any recovery be effected according to the provisions of law."
' Feeling aggrieved the appellants filed the present appeal under section 39 of the said Ordinance.
6. We have heard Mr. Ijaz Ahmad, Advocate for appellants and Mr. Muhammad Riaz Ahmed, Advocate for respondents.
7. The main contentions maintained and put forth on behalf of, the appellants are as under:--
(a) That at the time of receiving the payment from the liquidator of the company, respondent- Bank treated the same as full and final payment in the complete settlement of its dues and the balance in the account was brought to "Nil", therefore, respondent-Bank is now estopped from making any claim against the appellants on account of the dues which have already been settled and the transaction has become past and closed.
(b) That respondent-Bank had written off and waived all the debts outstanding against the principal debtor company upon receiving the payment from the liquidator, therefore, guarantees allegedly executed by appellants or their predecessors were discharged by operation of section 134 of the Contract Act, 1872. It has also been submitted that valuable rights have accrued in favour of the appellants and the same cannot be undone to the prejudice of the appellants on mere whims of respondent-Bank.
(c) That respondent-Bank has written off and waived debts of the company without any consent of appellants and accordingly the guarantees allegedly executed by the appellants or their predecessors stands discharged as under section 135 of the Contract Act, 1872 a surety is discharged if the creditor and the principal debtor make a composition or the creditor gives time to or agrees not to sue the principal debtor unless such contract is made with consent of the surety.
(d) That the appellants in their civil petition for leave to appeal had very clearly stated that the liabilities of the company were "written off' and respondent-Bank had no authority to reverse or revive the same. It has been submitted that the learned District Judge (ad hoc), Quetta has earlier rejected the objection on the ground that there is "no question of right of reverse" but on the other hand, the learned Judge held in the order dated 23-6-2000 that the liabilities were never written off. Elaborating arguments, it has been submitted that the objection raised by the appellants has not been appreciated and the order dated 23-6-2000 is also contradictory to the earlier order passed by the learned District Judge (ad hoc) on 10-4-2000.
(e) That the claim of the respondent-Bank against the appellants is hopelessly barred by limitation, as the cause of action against the guarantors arose in 1970 and 1973 when the guarantees were executed while the petition was filed in 1997 after lapse of more than 24 years but the learned Judge has failed to even consider this objection which was raised at the earliest opportunity. It has been submitted that the question of limitation is a mixed question of law and fact and could not be decided without giving an opportunity to the parties to lead evidence.
(f) That Credit Agreements being relied upon by the respondent-Bank provides for simple interest while the statement of account shows that the respondent-Bank has been charging compound interest and penal interest and has, therefore, recovered huge amounts from the company and its assets in excess of the legal dues of respondent-Bank.
(g) That the terms regarding the imposition of liquidated damages contained in the Credit Agreements are not enforceable in view of the judgments of the superior Courts and the penal interest has been charged on the basis of the aforesaid terms in respect of liquidated damages, the same are not recoverable either from company or the appellants.
(h) That the statement of account does not contain material particulars such as the rate of interest charged from time to time. It has been alleged that the appellants strongly apprehend that the respondent-Bank has interpolated and manipulated the accounts to inflate its claim.
(i) That the statements of account filed alongwith the petition is not certified in accordance with the provisions of the Bankers' Book Evidence Act, 1891 and, therefore, the entries contained therein cannot be relied upon unless proved in accordance with law.
(j) That the respondent-Bank has not attached any document with its petition showing any decision taken by the Board of respondent-Bank enforcing the reversal of the write off and waiver granted to the company. It has been submitted that even if any such document exists, the Board of respondent-Bank or any other person or authority is not authorized to take such decision under law.
(k) That the guarantees allegedly executed by the deceased predecessors of the appellants have ceased to have any effect on account of death of executants.
(1) That the provisions of section 39 of the IDBP Ordinance, 1961 can only be invoked for the recovery of a "loan" while in the present case no loan exists after the balance in the company's account was brought to "Nil".
(m) That the findings of the learned District Judge (ad hoc) that after filing of the application dated 5-9-1997, the appellants are not entitled to file written statement, is in clear violation of the provisions of the IDBP Ordinance, C.P.C. And the principles laid down by the superior Courts of Pakistan.
(n) That it is a settled principle of law that any party approaching the Court has to succeed on the strength of its own case and not on the weakness of the opposite-party's case and the respondent-Bank is duty bound to establish the validity of its claim.
(o) That the impugned orders have not been passed in accordance with the terms of the order passed by the Honourable Supreme Court.
(p) That the observations of the learned District Judge (ad hoc), Quetta in the order dated 10-4- 2000 that no objection relating to the reversal of write off was raised by the appellants in earlier proceedings, is irrelevant as the Honourable Supreme Court had directed the learned District Judge to decide this objection on merits as a preliminary point. The learned counsel in support of his contentions has relied upon the authorities, reported in 1998 CLC 353 and 1999 YLR 123 Karachi.
8. On the other hand, learned counsel for the respondent-Bank has supported both the impugned orders and also resisted the acceptance of the appeal.
9. After having given our anxious consideration to the arguments advanced by the learned counsel for the parties and perusing the relevant documents, we are of the view that the impugned orders dated 10-4-2000 and 23-6-2000 are not sustainable and we do not feel inclined to subscribe to the conclusion arrived at by the learned District Judge (ad hoc), Quetta. To prove the claim is on the claimant. There appears force in the contentions of learned counsel for the appellants that any party approaching the Court has to succeed on the strength of its own case and not on the weakness of the opposite-party's case. The trial Court should have satisfied itself with regard to validity of the claim. In the circumstances of the case, the appellants ought to have been allowed regarding submission of the written statement as no one should be condemned unheard unless and until barred by law. According to section 39(5) before passing any order under subsection (3) or subsection (4) the District Judge may, if he thinks fit, examine the person making the application but in the instant case it appears that the learned Additional District Judge-I, Quetta did not comply with the aforesaid provisions of law. It appears that the learned trial Court has not thoroughly studied the record so as to reach to correct conclusion rather he dealt with the matter in a cursory manner. The learned District Judge (ad hoc), Quetta should have complied with the directives of the Honourable Supreme Court in letter and spirit. Keeping in view the circumstances of the case he should have proceeded to investigate the claim in accordance with the provisions of section 39(8) of the said Ordinance and should have passed a proper order as per provisions under its subsection (9).
10. There is also force in the contentions of learned counsel regarding plea of limitation. It may also be noted that even if the appellants had not raised the plea of limitation, it was incumbent upon the Court to consider as to whether the suit is within time, particularly in view of the statement made by the respondent-Bank in the paragraph pertaining to cause of action. It is incumbent upon the Court seized with the matter to exercise jurisdiction keeping in view section 3 of the Limitation Act notwithstanding the fact whether the defendant had sought dismissal of the suit by setting the plea of limitation? In the instant case the plea of limitation was raised in both of the rejoinders i,e, 7-6-1997 and 5-9-1997 filed on behalf of appellants. The observations made by the Honourable Supreme Court in the authority reported in PLD 1985 SC 153 are noteworthy. The relevant portion of which is reproduced below for the sake of facility:-- "The words of section 3 of the Limitation Act are mandatory in nature in that every suit instituted after the period of limitation shall, subject to the provision of sections 4 to 25 of that Act, be dismissed although limitation has not been set, up as a defence. If from the statement in the plaint the suit appears to be barred by limitation, the plaint shall have to be rejected also under Order VII, rule 11, Civil Procedure Code. The law, therefore, does not leave the matter of limitation to the pleadings of the parties. It imposes a duty in this regard upon the Court itself. There is a chain of authority, and a detailed discussion of the same is not necessary, to lay down that limitation being a matter of statute and the provisions being mandatory, it cannot be waived and even if waived can be taken up by the party waiving it and by the Courts themselves. In Sitharama v.
Krishnaswa mi ILR 38 Mad. 374, where the defendants had pleaded the bar of limitation but the trial Court had held that they having admitted their liability for the amount in resisting the plaintiff s application in a previous suit, were estopped on general principles of law and equity from pleading that the suit was barred by limitation it was ruled that the defendants were not estopped and it was observed that "the bar of limitation cannot be waived, and suits and other proceedings must be dismissed if brought after the prescribed period of limitation" and that "the Judge cannot, on equitable grounds, enlarge the time allowed by the law, postpone its operation, or introduce exceptions not recognized by it'. The same Court in a subsequent case, Ramamurthy v. Gopayya ILR 40 Mad. 701, reiterated that the parties cannot estop themselves from pleading the provisions of the statute of limitation the Lahore High Court also took a similar view in Kundo Mal v. Firm Daulat Ram AIR 1940 Lah. 75, and held that 'there is abundant authority in support of the proposition that objections regarding limitation cannot be waived and that even if they are waived they can be taken up again by the parties waiving them or by the Courts themselves."
11. There is also force in the contention of learned counsel for the appellants, that the issue of limitation being a mixed question of law and facts could not be resolved without giving an opportunity to the parties to produce their respective evidence in respect of the same. We would have dealt with other aspects of the case but the same may prejudice either of the party during trial.
12. Having regard to the above mentioned factors and circumstances of the case, we are persuaded to allow this appeal and the impugned orders are accordingly set aside. Resultantly the matter is remanded to learned District Judge (ad hoc) Quetta for adjudication in accordance with law after providing opportunity of hearing to the parties, with no orders as to costs.