ALTAF HUSSAIN POONAWALLA Versus ASHRAF ESHAK
ORDER
MAHMOOD AHMED KHAN, J.--- This High Court Appeal has been filed under section 15, C.P.C. (Amendment) Ordinance, 1980 (Ordinance X of 1980) by the Appellants, who were the Defendants on the original side, being aggrieved and dissatisfied with the order dated 07.01.2008, whereby the application of the Appellants under Order VII, Rule 11, C.P.C. requesting dismissal of the plaint on the ground of limitation was dismissed.
2. As per the memo. but limited to relevance the Respondent filed the suit bearing No.1427/2006 before the original side of this Court for declaration, injunction and recovery of Rs.104.98 million as un-paid seller of his 37% shares in the Appellant No.2 (hereafter referred to as the said company) according to the minutes of meeting of Directors held on 26-10-2002 the amountis as agreed was to be paid within the period of three months. Two agreements dated 5-3-2013 were also got executed between the parties. According to the Appellant the Respondent divested himself from the affairs of the said company after receipt of the total sale consideration and executed transfer deeds in respect of the said shares along with receipts dated 27 and 28th November, 2002, the Appellant made a payment of Rs.9 million through cross cheque dated 15-2-2003. The Respondent has not disputed the payment, however states that the same have been made for different purposes. Other litigation between the parties has also been referred. It is further stated that the Respondent has claimed in the plaint that the "cause of action first accrued on 26-10-2002, when the minutes of the meeting were reduced and 5-3-2003 when two agreements both dated 5-3-2003 were executed and then again on 9-8-2006 when the Respondent sent legal notice through his advocate." It is as such claimed that the plaint is hopelessly barred by limitation but has not been so considered in the impugned order.
3. It is contended by the learned counsel for the Appellants that the Respondent filed suit as unpaid seller for the shares of Appellant No.2 based upon the agreement/understanding between the parties. It is further contended that the said transaction of the shares being goods is liable to be treated under the Sale of Goods Act. The rights of the unpaid seller are governed by Article 53 of the Limitation Act providing a period of 3 years. In the present case, the same was made on 26.10.2002. The limitation as was agreed between the parties expired on 26.01.2003. Learned counsel relying on section 55 of the Sale of Goods Act further stated that the Respondent in the matter completely divested and alienated himself from the affairs of the Appellant No.2 on 05.03.2003 as such the plaint having been presented on 16.11.2006 is time barred. It is further contended that the Plaintiff has sought prayers for Declaration and Injunction, but they are limited to the capacity of an unpaid seller, as the main relief is liable to be considered for determining of the limitation as held in the case of Dr. Muhammad Javaid Shafi v. Syed Rashid Arshad and others (PLD 2015 SC page 212) and the Respondent only having the capacity of an unpaid seller. Reference is also made to pages 261 and 385 of the file showing the Directorship in the Appellant No.2 and another Suit filed by the respondent's children. Learned counsel also refers to the cases of Ahmed Kuli Khan Khattak v. Creek Marina (Singapore) Pvt. Limited (2012 CLD 879) and Mohammed Karimuddin and 3 others v. Kanza Food Industries Limited, Karachi and 4 others (PLD 1982 Karachi 590) contending that under section 9 of the Limitation Act the revival for cause of action is reiterated. He has further relied upon the case of S.N.T Kumaraswami Chettiar and others v. M. S. M. Chinnathambi Chettiar and others (AIR (38) 1951 Madraas 291 contending that transaction of shares does not provide a recurring cause of action.
4. On the other hand, learned counsel for the Respondent has referred to Page 439 of the file contending that consent isues were agreed upon by the Appellants before the Trial Court even after filing of the Appeal and as such the Appeal is not maintainable. He relies upon the cases of Tariq Mahmood Chaudhry, Kamboh v. Najam-un-Din (1999 SCMR 2396), Habib Bank Limited v. Aizad Hassan and another (SBLR 2007 Sindh 1364). Learned Counsel for the Respondent has further argued that the element of Limitation is invariably always a mixed questions of law and facts and more so in the present case. It is further contended that the suit has been filed for Declaration wherein limitation prescribed as provided under Article 120 is six years. He has relied upon the case of Haji Kadir Bux v. Province of Sindh and another 1982 SCMR page 582 contending that in case two periods of limitations are available the beneficial consideration i.e. the one with a longer period is to be given preference. It is also contended by the learned counsel for the Respondent that the pending application for consideration of documents showing the directorship of the Appellant No.2 is available only after conclusion of the proceedings and the same is still awaited. Learned counsel for the Respondent finally relied upon the element of filing of the Counter Affidavit to the Application under Order VII, Rule 11, C.P.C. and both the learned counsel for the parties frankly conceded that before the original side the subject application was accompanied with the affidavit to which counter affidavit and rejoinder was also filed.
5. In rebuttal, learned counsel for the Appellarts states that the consent issues are not waiver of rights as none is present in the order relied upon by the learned counsel for the Respondent.
6. Having heard the learned counsel for the parties gone through the record and the authorities sighted at the bar. It appears from the record that the plaint seeks declaratory relief wherein element of recovery of amount is present along with mandatory injunction and repossession of factory. The Appellants required that the plaint be struck off at preliminary stage on the basis of limitation on the ground of date of the Agreement which is disputed by the Respondent on the ground of adjustment of payment towards another liability as claimed. As such the conclusion of the said agreement is based upon their own assertions. It is also a matter of record that the learned Single Judge has been pleased to highlight thoroughly the issue of limitaton, in the circumstances, where we find that in the present case the issue of limitation is based upon ascertainment of facts and as such within the proverbial phrase of mixed questions of law and facts, this Appeal does not sustain. We, therefore dismiss this High Court Appeal with simple costs in favour of the Respondent.
These are the reasons for the short order given on 10.05.2017.
MH/A-81/Sindh Appeal dismissed.