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Second Appeal No. 321 of 1972, decided on 6th February 1986.

‑‑‑O.XXXVII‑‑Negotiable Instruments Act (XXV1 of 1881), S.61‑‑Suit for recovery‑‑Presentment of promissory note‑‑Fact of presentment of promissory note or failure to do so could be decided only on basis of evidence‑‑Borrower at no stage raised issue that Bank's claim could not be entertained for want of presentment of promissory note‑‑Plea was neither raised in written statement nor at any stage any amendment was sought for introducing such plea‑‑First appellate Court allowing borrower to raise issue of presentment of promissory note and giving finding thereon‑‑Determination of plea required evidence whether presentment as required by Negotiable Instruments Act, 1881 was made out or not and whether facts and circumstances existed justifying absence of presentment or whether presentment was required‑‑Appellate Court, held, could not have allowed borrower to raise such plea and given a finding presuming non‑presentment, as plea was barred by rules of pleadings‑‑Appellate Court therefore wrongly decided case on plea which was not raised by borrower‑‑Plea sough to be introduced, was not purely a legal one; it was a mixed question of law and fact and determination of issue entirely depended on facts which were required to be proved by parties‑‑Such plea could be. raised by a party if it had been pleaded or introduced by way of amendment of pleading and other side given opportunity to rebut.

‑‑‑5.149, O.VII, R.11 & O.XXXVII‑‑Suit for recovery‑‑bank filing suit with deficite court fee‑‑in spite of objection raised. by office Bank failed to make up deficiency within time and no valid reason was given for non‑payment thereof nor any order for extention of time passed after due consideration of any fact and applying judicial mind and at no stage of proceedings appellant explained delay in payment of proper court‑fee‑‑Conduct of appellant negligent and contumacious‑‑Plaint in such circumstances, held, could not be treated to have been presented in time‑‑Suit therefore was barred by time.

H.H.S. Feldman v. The Province of East Bengal P L D 1970 Kar. 295 and Wilayat Khatoon v. Khalil Khan and another P L D '1979 SC 821 rel.

‑‑‑O.XXXVII‑‑Suit for recovery‑‑Bank filing suit against legal representatives of deceased borrower‑=Suit dismissed by First Appellate Court for want of presentment if promissory note and on point of limitation‑‑Letters of acknowledgment of liability allegedly written by borrower to Bank‑‑No categorical and unequivocal admission of liability to pay debt apparent from such letters‑‑Bank had also no where pleaded in its plaint that borrower, had acknowledged their liability‑‑Bank therefore could not raise such new plea of acknowledgment of liability by borrower‑‑Order of First Appellate Court dismissing, suit maintained in circumstances.

Messrs Karim Commercial Co. Ltd. v. The. United Oriental Steamship Co. and 2 others P L D 1970 Kar. 427 ref.

G.H. Malik for Appellant.

J.H. Rahimtoola for Respondent No.1

A.A. Dareshani for Respondent No.2.

Date of hearing: 21st and 22nd October 1985.

The appeal filed a suit .for recovery of Rs.12,156 against the respondent who are the leal heirs of late Agha Taj Muhammad, the then Registrar of the University of Sind, whom the appellant has granted over draft facility of Rs.12,000 with interest at the rate of 6 per annum. Late Agha Taj Muhammad had executed a promissory note and a letter of continuity on 9‑2‑1955. He died in October 1959. At the time of his death a sum of Rs.12,156/11/3 was outstanding against him which according to the appellant as pleaded in the plaint is recoverable from the estate of the deceased in the hands of the respondents. It is alleged that the appellant intimated the respondent No.1 about the outstanding amount, whereupon he expressed his inability to make immediate payment of the outstanding amount and requested for exemption of interest and further wanted instalments. the appellant did not agree and filed the suit on 25‑5‑1962 for recovery of Rs.12,156/11/3 with court‑fee of Rs.1. The office raised objection for payment of deficit court‑fee which after several extension of time was complied and plaint was admitted on 7‑1‑1963 subject to objection. The respondent No.2 to 10 denied the claim. They pleaded bar of limitation. The respondents 2 to 9 further pleaded that the letter alleged to have been written by the respondent No.1 was not under their authority or on their behalf and they were not bound by it. The learned trial Court framed the following 11 issues and decreed the suit:‑

(1) Whether defendants are agriculturists within the meaning of D.A.R. Act Whether defendant No.5 Sajidan and defendant No.8 ‑Shahida, are daughters of late Agha Taj Muhammad Khan If not, then what is the result

(3) Whether late Agha Taj Muhammad got an overdraft of Rs.12,000 sanctionec with interest at the rate of six per cent. per annum from the plaintiff Bank and executed a promissory note in token of payment, along with a letter of continuity of the said promissory note on 9th February, 1959

(4) Whether all or any of defendants, are liable to the plaintiff in any manner, and whether the suit amount is recoverable from all or, any of the defendants

(5) Whether any cause of action ever arose to the plaintiff against sthe defendants

(6) Whether the suit is, time‑barred

(7) Whether the suit is not maintainable according to law

(8) Whether the jurisdiction of the 'Court is barred under the Law

(9) Whether suit is bad on account of misjoinder of defendants Nos.5 and 8

(10) Whether plaintiff is entitled to any costs of the suit, in absence to ,the defendants, prior to the institution of the

(11) What should the decree be

The respondent filed an appeal against the judgment and decree passed by the learned trial Court. The learned first appellate Court framed 5 points for determination which are as follows:‑‑

(1) Whether the suit is not maintainable for want of presentment of the promissory ,note for payment

(2) Whether the suit is time‑barred

(3) Whether the suit is maintainable according to law

(4) Whether all or any of the appellant /defendants are liable to the respondent/ plaintiff bank in any manner and whether the suit money is recoverable from all or any of the appellant‑defendants

(5) What should the order be

The learned appellate Court held that the suit was not maintainable for want of presentment of promissory note, and further that it was barred by time and dismissed the suit.

Mr. G. H. Malik the learned counsel for the appellant has contende that the learned first appellate Court could not have framed an issue regarding presentment of the promissory note as it was not pleaded b the respondent. It was further contended that as the determination o this issue required evidence, by framing such an issue and without giving an opportunity to produce evidence to prove whether present men was made or not, the learned 1st Appellate Court has committed error in the procedure provided by C.P.C. The contention of the learned counsel 'seems to be correct. The respondent at no stage had raise the issue that the appellant's claim cannot be entertained for want o presentment of the promissory note. Determination of this plea require evidence, whether the presentment as required by the Negotiable Instruments Act was made or not, and whether facts and circumstances existed justifying absence of presentment or whether presentment was required. The fact of presentment of the promissory note or failure to do so could be decided only on the basis of the evidence. As such a plea was not raised in the written statement, nor at any stage any amendment was sought for introducing such a plea, the learned appellat Court could not have allowed the respondent to raise this plea and given a finding, presuming non presentment. The learned appellate our has therefore, wrongly decided the case on the plea which was no raised by the respondents. According to Mr. Rahmatullah the learn counsel for the respondent, it is a legal plea, and therefore, it could; have been raised at the appellate stage. The plea sought to be introduced is not purely a legal one. It is a mixed question of law and fact an the determination of the issue entirely depended on facts which require to be proved by the parties. Such a plea can be raised by a party, if it has been pleaded or such plea is being introduced by way of amendment of pleading and the other side has been given opportunity to rebut it. In the facts 9.nd circumstances of the case, the learn appellate Court could not have given finding on issue of present men of the promissory note as the plea was barred by the rules of pleadings.

Mr. J.H. Rahimatoola the learned counsel for the respondents has contended that the suit was barred by time. Mr. G.H. Malik the learned counsel for the appellant has contended that in view of the acknowledgment of liability. made by the respondent No.1 the suit is within time. In this regard the learned counsel for the respondents Nos.2 to 6 has contended that the respondent No.1 has not acknowledged the liability and if for argument sake he has made any such acknowledgment, then it is not binding on the respondents Nos.2 to 10. The learned counsel for the respondent has referred to the plaint in which the appellant has nowhere pleaded that the respondent‑s have at any stage acknowledged the liability to pay the amount. Averments in the plaint do not refer to such a plea in para. 7 of the plaint it is stated that cause of action arose on 9‑2‑1959 when the promissory note was executed with a letter of continuity and in October, 1959 late Agha Taj Muhammad expired leaving a balance of Rs.12,156/1/3 as it stood on 26‑9‑‑1969. Even on the allegations made is the plaint cause of action is sought to be stretched upto 26‑9‑1959 When the interest is alleged to, have accrued. Without looking into this aspect of the case and by taking 26‑9‑1959 as the last date for accrual of the cause of action, it is to be seen, whether the suit has been filed within time. The plaint was present on 25‑5‑1962 with court‑fee stamp of Rs.1 On 30‑5‑62 office raised objection regarding deficit court‑fee of Rs.686 and the appellant was required to comply by 2‑7‑1962. The appellant sought extension on 2‑7‑1962, 15‑8‑1962, 27‑9‑1962, 3‑1i‑62, 2‑12‑62 and on 15‑12‑62 compliance was made any finally on 7‑i‑63 the plaint was admitted subject to objection. There is nothing on record to show for what reason, the court‑fee was not paid, and the appellant dragged it from 25‑5‑1962 to 15‑12‑1962. As the plaint was admitted subject to objection, the delay was not condoned, nor the learned trial Court has applied its mind to this aspect of the case, and the question remained even which could be agitated by the respondents during the trial. There is nothing on record to indicate that the appellant had filed by application under section 149, C.P.C. making out any valid reason for extension of time.

The plains though presented on 25‑5‑1962 proper court‑fee was at paid and in spite of objection raised by the office, the appellant did not Pay the deficit court‑fee till 15‑12‑1962. No valid reason ha D been given for non‑payment of the court‑fee, nor there is any order for extension of time passed after due consideration of any fact and applying judicial mind. At no stage of the proceedings the appellant has explained the delay in payment of proper court‑fee. The conduct of the appellant was negligent and contumacious. In these circumstances, the plaint cannot be treated to have been presented within time. I shall be treated to have been presented on the day when the deficit court‑fee was paid on 16‑12‑1962. Therefore, in view of the observation made in H . H . S. Feldman v. The Province of East Bengal P L f 197 Kar. 295 and Wilayat Khatoon v. Khalid Khan and another P L D 197 S C 821 the suit was barred by time.

In order to meet the plea of, limitation the learned counsel for the appellant has contended the respondent No.1 has acknowledged the liability, and therefore, the suit is within time. The acknowledgment of liability is sought ‑to be placed on letter of respondent No.1 namely Exh.64 dated 4‑11‑1959. I n this letter, the respondent No.1 had proposed that the appellant should grant certain facilities stating that for the next four months no payment could be made and he may be exempted from paying interest, the interest may be calculated after the death of his father and further that instalment may lie granted. From a reading of this letter it is clear that this was a proposal for settlement of the claim on certain concession sought by the respondent No.1. Admittedly this was not accepted by the appellant. The next letter is Exh.62/3 dated 17‑5‑1960 by which the respondent No.1 sent a cheque of Rs.100 towards first instalment of over‑draft outstanding against his father, but it was not accepted by the appellant. The third letter is Exh.61 dated 14‑6‑60: In this letter also, the respondent No.1 stated that he is not aware of the amount claimed by the appellant, but suggested to pay in instalment of Rs.100 p.m. and that the exemption may be granted from paying interest. No favourable reply seems to have been given by the appellant. The last letter is Exh.62/1 dated 14‑1‑1961. This is a letter in which the respondent No.1 had asked for the balance in the account of his father. A reading of these letters make it clear that no categorical and unequivocal admission of liability to pay has been made. In fact Exh.63/3 and Exh.64 have been referred by the learned counsel for the appellant treating them as admission of liability. According to Mr. Rahimtoola ‑these letters were merely proposals and suggestions made to the appellant and were not admission of liability. It is correct that in these letters the respondent No.1 has to put certain conditions for the payment of amount claimed by the respondent. There is no clear and unequivocal admission of liability and furthermore even if it is to be treated as an admission of liability it can be only in respect of the share of the respondent No.1 and cannot be bind down respondents Nos. 2 to 8, some of whom are minors and he had no authority to admit any claim on their behalf. Be that as it may, the learned counsel for the respondent has contended that the appellant has not pleaded that the respondent have admitted their liability, and therefore, such a plea cannot be raised. This contention has great force, because as pointed out earlier in the plaint, the appellant has nowhere pleaded thit the respondents had acknowledged their liability and. therefore, cannot raise this plea now. In this regard the learned counsel for the respondents has referred to Messrs Karim Commercial Co. Ltd. v. The United Oriental Steamship Co. and two others P L D 1970 Kar. 427 where it was observed as follows:‑‑

"Mr. Lari then submitted that the letter of 15th February, 1963 amounted to an acknowledgment, of liability before the expiry of the statutory period of limitation, therefore it had extended time and as the suit was filed within one year of the said letter it was within time Despite the mandatory provisions of Order VII, rule 6, C .P. C the plaintiffs have not pleaded extension of time in the plaint, therefore, this argument is barred by the pleadings."

Therefore, at this stage the appellant cannot be allowed to take the plea of acknowledgment of liability by the respondent. The appeal is therefore, dismissed with no order as to cost.

M. Y . H . Appeal dismissed.

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