Order Sheet
IN THE HIGH COURT OF SINDH AT KARACHI
High Court Appeal No. 05 of 2012
____________________________________________________________
Date Order with signature of Judge .
Present
1. Chief Justice
2. Mr. Justice Nadeem Akhtar
For Katcha Peshi :
Appellant : M/s Rock Well Enterprise through
Mr. Nasir Mehmood, Advocate.
Respondents : Employees’ Old Age Benefits Institution
and Federal Government of Pakistan.
Date of hearing : 02.04.2013.
O R D E R
Nadeem Akhtar, J. : Through this High Court Appeal, the appellant has impugned the order dated 23.11.2011 passed by a learned single Judge of this Court in Suit No.1564 of 2005, whereby the plaint of the said suit filed by the appellant for recovery of Rs.20,800,341.00 against the respondents was rejected.
2. As per the averments made in the plaint, the appellant and respondent No.1 entered into an agreement dated 09.12.1998 for installation of air-conditioners at the Peshawar office of respondent No.1. The appellant commenced the work under the agreement in January 1999, and by 28.09.2001, about 95% work was completed. Part payments were made to the appellant by respondent No.1, though he was entitled to the entire amount under the agreement. Respondent No.1 did not pay to the appellant the amounts as per the agreement, such as, the custom duty paid by the appellant on the equipment imported for the execution of the agreement, the retention money, escalation charges, etc. The dispute started in January 2001 when the bills mentioned in the plaint were stopped by respondent No.1. The appellant was forcibly “expelled” by respondent No.1 from the project site at gun point on 28.09.2001. On 29.08.2002, a joint measurement was conducted under the instructions of respondent No.2. The consultant of respondent No.1, vide letter dated 21.12.2002, approved payment of Rs.2,103,375.00 to the appellant instead of the entire remaining amount under the agreement, to which reluctance was shown by the appellant. The appellant was called by respondent No.1 at his office on 13.12.2005, but payment of his outstanding dues was refused. The appellant was entitled to all the amounts claimed in the suit, including damages. The suit for recovery of Rs.20,800,341.00 was filed by the appellant against the respondents, jointly and severally, in the above background.
3. An application for rejection of the plaint was filed by respondent No.1 on the ground that the suit was barred by limitation. The contention of respondent No.1 was that the work under the agreement dated 09.12.1998 commenced in January 1999 and the contract ended on 30.06.2000, whereafter all the amounts payable under the agreement were duly paid and finally settled by respondent No.1. Subsequently, the appellant wrote a letter to respondent No.1 in January 2001 claiming further amounts. It was urged by respondent No.1 that, if the averments made in the plaint were deemed to be correct, even then the suit was barred by limitation as the cause of action had lastly accrued on 28.09.2001 according to the appellant, but the suit was filed on 22.12.2005. The application for rejection of the plaint on the above ground was allowed, and the plaint was rejected through the impugned order.
4. Before the learned single Judge, it was conceded on behalf of the appellant that, on facts, the suit appeared to be barred by limitation. However, it was urged that before the expiration of the prescribed period of limitation, respondent No.1 issued the letter dated 21.12.2002 which amounted to acknowledgement and acceptance of liability on its part under Section 19 of the Limitation Act, 1908. As such, the time began to run afresh from the date of the said letter, and accordingly, the suit was within time. In view of the above admission on behalf of the appellant, the learned single judge rightly observed that only the said letter dated 21.12.2002 of respondent No.1 was to be examined in order to ascertain as to whether respondent No.1 had acknowledged the liability or not. After examining the said letter, the learned single judge came to the conclusion that there was no acknowledgement of liability therein by respondent No.1, and that respondent No.1 was in fact not willing to pay to the appellant even the ex gratia amount mentioned in the said letter.
5. The learned counsel for the appellant urged the same ground before us that the appellant was entitled to the benefit of Section 19 of the Limitation Act, 1908, in view of the letter dated 21.12.2002 issued by respondent No.1. In order to appreciate his contention and also in order to see as to whether the findings of the learned single Judge in relation to the said letter were correct or not, it is necessary to closely examine the contents of the said letter. The said letter was written by respondent No.1 not to the appellant, but was addressed to the Ministry of Labour, Manpower and Overseas Pakistanis, Government of Pakistan, Islamabad, the respondent No.2 herein and defendant No.2 in the suit. It was stated inter alia in the said letter that regarding escalation and other claims of the appellant (the contractor), the consultants M/S Pepac were the final authority as per the agreement ; the amount recommended by the consultants against the claims of the appellant had been duly paid to the appellant ; the appellant’s letter dated 20.09.2002 for review of his claims, was forwarded to the consultants, whose decision was final as per the agreement ; vide letters dated 12.11.2002 and 22.11.2002, the consultants informed that no further amount could be recommended under the agreement ; the consultants suggested that “to help out the contractor & to compensate his loss ”, an amount of Rs.2,103,375.00 “could be considered as ex gratia payment ” ; the consultants were requested to specify the provision of the agreement whereby such payment was permissible to the appellant, to which they replied that there was no clause in the agreement for ex gratia payment ; there was no legal justification and there was no provision for ex gratia payment either in the agreement or in the Rules of respondent No.1 to make such payments to compensate the appellant for the loss incurred by him due to his own faults, inefficiency and bad performance ; the amount recommended by the consultants for the work done as per joint measurements and the escalation etc., was in full and final settlement against the bills / claims of the appellant ; and the matter stood closed.
6. Admittedly, the appellant has relied upon only the said letter dated 21.12.2002 in support of his contention that respondent No.1 had acknowledged its liability. The contents of the said letter clearly show that respondent No.1 was sure that the bills / claims of the appellant had been duly paid in full and final settlement in terms of the agreement, the appellant was not entitled to any further amount under the agreement, and the matter had been closed. It is also clear that the appellant’s request for review of his claim was declined by the consultants, who were the final authority under the agreement. The amount recommended by the consultants as an ex gratia payment, was also not agreed to by respondent No.1 as there was no provision in the agreement for ex gratia payment. It was maintained in unmistakable words that respondent No.1 was not liable to pay to the appellant any amount under the agreement. There was no acknowledgement of liability, even remotely, in the said letter by respondent No.1. The submission made by the learned counsel for the appellant, being without any substance or force, is therefore rejected.
7. After rejection of the sole ground urged on behalf of the appellant, there remains nothing to dislodge the impugned order as the suit based on the cause of action allegedly accrued on the earlier dates was barred by limitation even according to the appellant. Therefore, the impugned order was fully justified and legal in all respects, and the same does not require any interference.
This appeal was dismissed vide short order announced by us on 02.04.2013, and the foregoing are the reason of our short order.
Chief Justice
Judge
*HCA 05-2012 Rejection of Plaint.docx/Orders DB/Court Work/ARK*