1994 PLP 2281 (CLC)

(b) Negotiable Instruments Act (XXVI of 1881)‑‑‑ ‑‑‑‑S. 80‑‑‑Civil Procedure Code (V of 1908), O.XXXVII, R. 2‑‑‑Suit in summary jurisdiction‑‑‑Competency‑‑‑Reliance on additional supporting documentary material other than the Promissory Note would not take the suit out of summary character viz. O.XXXVII, Civil Procedure Code, 1908. S. Tasawoor Hussain Rizvi for Appellants. S. Mamnoon Hasan for Respondent (on Pre‑admission Notice). WAJIHUDDIN AHMED, J.‑‑This is an application under section 5 of the Limitation Act and is supported by the affidavit of the learned counsel of the appellants himself to the effect that while on 3‑2‑1993 the learned Single Judge, on the conclusion of hearing, had observed that the order would be passed during the course of the day such order was not actually passed till 18‑2‑1993, when the file, allegedly, was sent to the concerned branch by the Reader of the Court. On this ground condonation of delay for the period between 3‑2‑1993 and 18‑2‑1993 is being sought. Subject to what follows below, even if what the learned counsel avers is true and even if the order was not available for the learned counsel on 3‑2‑1993 or on the dates which followed, it was a fact known to the appellants as well as their learned counsel that such order must have been dictated on 3‑2‑1993. Irrespective of the availability of the order for obtaining due copy thereof, it was, therefore, a duty of the appellant to apply for certified copy of such order which, if that had been done, would not have entailed any delay whatsoever. It is common place that certified copies of decrees, which follow judgment in due course of time and which are, notionally, supposed to bear the same date) as the judgments are applied for upon the pronouncement of judgment and irrespective of the fact whether or not due decree has been prepared. Like course was obviously available to the appellants. Identical would be the situation, where a superior Court, subject to reasons to be recorded later, disposes of a matter through a short order. Awaiting reasons to be recorded certified copies of the short order and reasons therefore are invariably applied, for thereby forestalling all possibilities of delay. We expect the same principle applies to matters of the nature agitated in this appeal. This was so far as the averments from the side of the appellants are concerned, on the assumption of such being absolutely true. In point of fact, that is doubtful, for if there was such an intervening period in the learned Judge's dictating the order and the judgment‑writer making the order available for signatures of the learned Judge, at the time of signing the order the learned Judge would have indicated the actual date of signing but that would only be if such date was materially different. At any event, if there was such a time‑lag, as alleged, the proper course for the appellants would have been to file an application before the learned Single Judge for rectification of the date of actual signing of the order, which allegedly was different from the one on which the order was indicated to have been passed. That this was not done implies that the appellants' version may not have been as true as we have assumed in the first part of the order. In such circumstances, there is no case for condonation of delay and this application, therefore, merits dismissal. We, however, do not dismiss it in view of the ultimate order we pr9pose to pass, as appears below.

2. Exemption is granted subject to all just exceptions.

3. If we were to dismiss the application at serial No. l above there was no requirement to pass any order as to the merits of the controversy. However, we have, in the interest of justice, heard the learned counsel of the parties, the respondent being represented on pre‑admission notice. Mr. Tasawoor Hussain Rizvi has urged that the impugned order of conditional grant of Leave to Defend is erroneous inasmuch as part from the Promissory Note, execution whereof was not denied, the respondent had also relied upon some additional documents, which tended to take the suit out of the Summary Chapter in the Code of Civil Procedure, designated for suits on negotiable instruments. Learned counsel for the appellants has further urged that mark‑up, as claimed in the suit, did not arise because that was not a part of the Promissory Note. Both these contentions are fallacious. In the first place, the Promissory Note being an admitted document the other supporting documentary material namely, the Agreement and the letter of Hypothecation were produced from the side of the plaintiff‑respondent to indicate the rate of mark‑up, as, under an amendment, is now admissible on negotiable instruments, based on returns other than interest, if the returns be unspecified (section 80 of the Negotiable Instruments Act, 188‑1, as amended). Reliance on documentary material other than the Promissory Note did not thus take the suit out of the Summary Chapter viz. Order XXXVII, C.P.C. As to the other question, concerning mark‑up as well the impugned order in view of the amended provision in section 80 ibid, remains unexceptionable. However, with the consent of Mr. S. Mamnoon Hasan and with a view to do complete justice between the parties, a; this stage of the proceedings, we would direct that the security directed .to be furnished in the suit by the learned Single Judge, would not exceed a total sum of Rs.5,50,000 i.e. the amount of the Promissory Note, and not Rs.7,00,000 as directed on the Original Side. Besides six weeks' further time is allowed to the appellants to furnish security. Nothing in this order, however, would be binding either on the parties or the learned Single Judge, upon trial of the suit in due course. There will be no costs in this appeal. Appeal disposed of accordingly and so also C.M.A 340/1992 for stay at Serial No.4. A.A./N‑533/K Order accordingly