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Civil Revision No.523/ D of 1981, decided on 18th May, 1987.
---Arts. 59 & 132--Loan, granted by Bank, secured not only by execution of demand promissory note but also by deposit of title deeds--Suit to recover amount of loan is governed by Art, 132 and not by Art. 59, Limitation Act, 1908--Limitation for purpose of such suit is, 12 years from the date amount becomes due.
Patuakhali Bank Ltd. v. Muhammad Emdad Ali and another P L D 1964 Dacca 36 not applicable.
---Art. 114--Estoppel--No estoppel against statute.
Muhammad Yaqub Khan for Petitioner.
Ch. Abdul Hamid for Respondents.
Date of hearing: 18th May, 1987.
This Civil Revision calls in question the Judgment /decree dated the 20th of July, 1980, of the learned Additional District Judge, Sargodha, whereby he dismissed the petitioner-Bank's first appeal.
2. It was a suit for recovery of Rs.40,451.19 based upon a promissory note dated the 12th of July,1961, which allegedly the respondents-defendants had executed in favour of the petitioner-Bank on their affording them a facility of loan to the extent of Rs.50,000. The loan was secured by letter of arrangement, deposit of title deeds, pledge of goods and letter of guarantee. On account of the respondents' failure to repay it, the suit was instituted on the 3rd of January, 1969.
3. The respondents-defendants contested the suit raising a number
of pleas and among them was that of limitation. Issue No.l was
specifically framed thereabout and the courts below concurrently found that the suit was barred by time.
4. Mr. Muhammad Yaqub Khan for the petitioner contended that the loan having been secured by mortgage of immovable property created by deposit of title deeds, the suit to recover the amount fell under Article 132 of the Schedule to the Limitation Act and that the limitation therefor was twelve years from the date the amount became due. He added that the loan was meant only for a period of one year, meaning thereby that the limitation started from the 12th of July, 1962, that is a year after the execution of the promissory note. Under Article 132 ibid it could have been recovered within twelve years from the 12th of July, 1962. The suit was, in fact, instituted on the 3rd of January, 1969. On this calculation it was within time by a very safe margin.
5. On the other hand, Ch. Abdul Hameed opposing the revision petition urged that in the plaint, the petitioner-plaintiff had been banking upon various acknowledgements allegedly made by the respondents and that the last one being made on the 30th of June, 1966, (Exh.P.8) was not enough to give a further extension of limitation to the Bank. He relied upon Patuakhali Bank Ltd. v. Muhammad Emdad Ali and another (PLD 1964 Dacca 36) which, according to him, holds that an account sent to the client for information and signed by him did not amount to acknowledgement so as to extend the limitation for its recovery. He objected to the petitioner now relying upon Article 132 of the Limitation Act for the reason that it had not been earlier relied upon at any stage and that the respondents were, in a way, being taken by surprise. He reiterated that the limitation for this suit was three years as envisaged by Article 59 of the Schedule to the Limitation Act and that starting it from the 12th of July, 1962, it had expired long before the suit was instituted on the 3rd of January, 1969.
6. Unluckily it is a hard case against the respondents-defendants. The plaint was clear in stating that the loan facility was based nod only upon the demand promissory note but also the letter of A arrangement, the deposit of title deeds, the letter of guarantee and the pledge of goods. It was not denied in the written statement on behalf of the respondents-defendants that they had executed all these securities in favour of the petitioner-Bank for repayment of the loan. Deposit of title deeds means as per section 58 (f) of the Transfer of Property Act a simple mortgage of immovable property. Obviously it attracted the application of Article 132 providing a period of twelve years for bringing the suit for recovery of the amount advanced on its basis. There was no question of applying Article 59 inasmuch as the mortgage of immovable property was not denied. It changes the entire complexion. The Courts below did not advert themselves to this aspect. The objection that it was not earlier invoked cannotl estop the petitioner from relying upon it now. It is a pure and simple point of law. The factum of mortgage was not denied and what was left behind was to apply the correct law. Recovery of amount based upon mortgage could be made within twelve years. There may be no earthly reason to deny this limitation to the petitioner-bank as they were wise enough to have obtained mortgage of the respondents' property. Article 59 conversely may have been applicable, had it been a simple case of recovering an amount paid as a loan without is no point in urging that the present suit should have been instituted within three years. The finding of the lower courts on the point is reversed. The suit is held to be in time. All other issues were decided in favour of the petitioner and the respondents did not file any cross-objections to impugn them. Nothing more is to be decided. In the equal, the revision petition is accepted, the impugned judgment/decree are set aside and instead the petitioner's suit for recovery of Rs.40,451.19 is decreed with costs and interest only from the date of decretal realization.
K.B.A./N-46/L Petition accepted.
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