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Civil Appeals Nos. K‑35 and K‑36 of 1965, decided on 12th May 1969.

(On appeal from the judgment and order of the High Court. of West Pakistan, Karachi Bench, Karachi, dated 31st January 1962, in Letters Patent Appeals Nos. 1 and 2 of 1959).

---Ss. 34 & 35(3) read with Interests Act (XXXII of 1939), S. 34‑Money suit‑interest Plaintiff entitled to interest from date of demand notice given to, defendant prior to filing of suit and thereafter for period the suit remains pending.

P. D. Ramchandani, Advocate Supreme Court for Appellants.

S. M. Nurul Hassan, Advocate Supreme Court instructed by Shafiq Ahmad, Attorney for Respondents.

Date of hearing : 12th May 1969.

‑These two certificated appeals are directed against a judgment passed by a Division Bench of the High Court of West Pakistan, Karachi Bench, reversing the judgment of a learned Single Judge who dismissed on the ground of limitation two suits filed by the present appellants, on the original side.

The facts relevant for the disposal of the appeals may be v stated shortly. The appellants of Civil Appeal No. K‑35 of 1965, filed Suit No. 298 of 1952 for recovery of Rs. 43,347 on account of damages for breach of a contract relating to the construction of two‑roomed quarters for peons at Clayton Road, entered into by them and the former Province of Sind on the 26th June 1947. After the suit was filed, two payments were received by the appellants, reducing their claim by Rs. 23,960. The claim of the appellants, therefore, stood at Rs. 19,386,15.

The appellants of Civil Appeal No. K‑36 of 1965, filed Suit No. 301 of 1952 for recovery of Rs. 23,838‑14‑0 on the basis of a contract for the construction of two‑roomed quarters for peons at Clayton Road, entered into by them with the former province of Sind on the 28th July 1947. After the suit was filed in this case also two payments were received on account of which the claim was reduced by Rs. 5,892 leaving of balance of Rs. 17,946‑14‑0.

The suits were contested by the Province of West Pakistan on the ground, inter alia, that they were barred by limitation. The learned Single Judge held that both the suits were barred by time. He, therefore, dismissed them without determining the issues with regard to their merits.

The appellants preferred Letters Patent Appeals against the judgment and decrees of the learned Single Judge. The learned Judges of the Letters Patent Bench found that the suits had been instituted within time. They, therefore, set aside the finding of the learned Single Judge on the issue of limitation. They, however, in spite of the contention of the learned counsel for the appellants that as the respondent had not pressed the issues relating to the merits of the claims of the appellants, the suits ought to be decreed in full, proceeded to examine them. In Suit No. 298 of 1952 it was found that the plaintiffs were entitled to a sum of Rs. 13,079 and in suit No. 301 of 1952, the plaintiffs were entitled to Rs. 14,483‑2‑0. The suits, therefore, were decreed to that extent with proportionate costs. The claim for the payment of interest was disallowed.

The present appeals appertain only to the disallowance of the claims relating to interest and some portions of the costs. In Suit No. 298 of 1952, the plaintiffs had claimed Rs. 6,307‑13‑0 on account of interest prior to suit at 6 % for wrongful detention of money. In Suit No. 301 of 1952, a sum of Rs. 3,463‑12‑0 was claimed on that account.

It appears that in regard to the claim in Suit No. 298 of 1952, the plaintiffs served on the defendants a demand notice on the 19th of April 1951. The plaintiffs are entitled under section 34 of the Interests Act, interest from that date till the filing of the suit and thereafter for the period the suit remained pending. The principal amount involved in this case was Rs. 37,039‑3‑0. A sum of Rs. 7,213 was paid on the 1st January 1955 and another sum of Rs. 16;747 was paid on 12‑9‑1955. Taking into account these payments if interest is calculated on the amount that remained due from the date of the notice i.e., 19‑4‑1951 till the date of payment of dues of the plaintiffs which is the 9th of April 1965, it appears that the plaintiffs are entitled to a total sum of Rs. 16,942.57 on account of interest.

In Suit No. 301 of 1952, on calculations made on the above basis, it has been found that a sum of Rs. 14,516.42 is payable on account of interest. We are of the view that there was no justification for disallowing interest in these cases.

As regards costs, since we have come to the conclusion that, there was no justification for disallowing the claims for interest, we feel that the appellants should get costs op these amounts in the Courts below.

In the result the appeals are allowed with costs. The judgment and decrees of the Letters Patent Bench‑ are varied to this extent that in Appeal No. K‑35 of 1965, the appellants would get in addition to the amount decreed Rs. 16,942'57 and costs on the amount of interest claimed in the suit of the Courts below.

Civil Appeal No. K‑36 of 1965 is also allowed with costs. The appellants would get a sum of Rs. 14,516,42 on account of interest together with costs on the amount of interest claimed in the suit of the Courts below.

Appeal accepted.

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