Dated of hearing : 24/03/2009

Mr. Nazar Hussain Dhoon, advocate for appellant

Nemo for the respondent.

KHILJI ARIF HUSSAIN,J:- Brief facts to decide the appeal are that the appellant was an authority established under President Order 7 of 1980 appointed respondent No.1a proprietorship concern of respondent No.2 on 29.10.1975 for transportation of port land cement from Jawaindan and National Cement Factories in Karachi and sulphate resistant cement from Rohri Cement Works for their project. For this purpose the respondent was given mobilization advance of Rs.30,000/- and Rs.70,000/- respectively on 30.10.1975 and 2.12.1975 to be adjusted from their running bills. It was also alleged that in addition to mobilization advance a sum of Rs.26,000/- was given to the respondent for purchase of trucks of improving their transport capability. The appellant also provided another advance of Rs.2,40,000 to procure cement for appellant’s Sea View Project. It was alleged that due to deteriorated performance of respondent a sum of Rs.4,00,000/- approximately became outstanding against the respondent and respondent after discussion executed Insurance Bond of Rs.3,50,000/- with a promise to improve their performance. It was alleged that due to default on the part of respondent Insurance Company was called to reimburse the amount of Rs.3,50,000/- which Insurance Company refused to honour on the plea that the claim against respondent was found on cause prior to insurance bond. On 8/11/1979 appellant served notice upon the respondent to liquidate the dues failing which the matter will be referred to Martial Law Authority. Respondent on 29.06.1981 executed promissory note for a sum of Rs.3,70,000/- as acknowledgement of the liability to pay the dues. The appellant then filed Suit under Order XXXVII on the basis of the promissory note on 25.10.1986.

The respondent filed written statement denied the allegation and also pleaded that they were not liable to pay the claim of the appellant, the alleged promissory note was executed under coercion. After framing of issues, and recording of evidence, the learned Single Judge dismissed the suit as barred by time.

After taking us through various documents on record, learned advocate for the appellant argued that as an acknowledgement of outstanding liabilities, the respondent executed insurance bond of Rs.3,50,000/- and when on their failure to perform the contract the appellant called upon the Insurance Company to pay the amount under insurance bond, which insurance company refused to honour them. The appellant then filed complaint before the Martial Law Authority, where respondent executed promissory note dated 20.06.1981.

We have taken into consideration arguments advanced by the learned advocate for the appellant and perused the record. From perusal of the record it appears that contract was awarded to respondent on 29.10.1975 for transporting of port land cement, sulphate resistant cement at their project and for said purpose extended mobilization of Rs.30,000/- and 70,000/- on 30.10.1975 and 2.12.1975 and further extended an advance in the sum of Rs.2,60,000/- for purchase of trucks and advance of Rs.2,24,000/- to procure cement for their project known as Sea View Project. Some amount as per memo of plaint became outstanding against respondent and to clear the same respondent after discussion executed insurance bond in the sum of Rs.3,50,000/- on 21.05.1975. In December 1978 appellant decided to invite tenders for the transportation of cement from in Karachi to site construction of the society area as the respondent had ceased the work and called upon the insurance company to reimbursed the appellant for the amount to which the insurance company stood surety. The insurance company expressed its inability to pay the amount through their letter dated 15th September 1979. The appellant then called upon the respondent to pay the outstanding dues, failing which matter will be referred to Martial Law Authority for appropriate action. The respondent through letter dated 30.12.1979 denied the claim of the appellant. The appellant requested Martial Law Authority for recovery of the outstanding amount and in these circumstances respondent was compelled to executed promissory note dated 29.06.1981. In the letter dated 12.05.1984 addressed to Dy. Martial Law Administrator the respondent categorically stated that he was given two alternative by the MLA either sign the promissory note or to go to jail the. Under these circumstances promissory note was executed by the respondent. Learned Single Judge after taking into consideration all aspects of the matter in detail and discussing the evidence on record and after taking into consideration principle laid down in the case of Messrs M. G. Kadir & Co. vs. Abdul Latif, PLD 1970 Kar. 708. Likewise the promissory note under pressure has not been executed by the respondent on his freewill.

We are in full agreement with the finding of the learned Single Judge in this regard and also for the purpose of section 19 of the Limitation Act that the writing has to be interpreted liberally so as to maintain right to sue and that such writing/acknowledgement should be under freewill.

Amount claimed by the appellant became due and payable in November 1979 when contract was cancelled by the appellant, whereas promissory note was executed on 29.06.1981 even if same was executed under freewill, the suit was filed on 25/10/1986 on the face of it, was barred by time.

For the foregoing reasons, appeal has no merits accordingly dismissed in limine

JUDGE

HCA No.17-19

15/04/09