2008 PLP 41 (CLC)

NADEEM AZHAR SIDDIQI, J.

The plaintiff has filed this suit for recovery of Rs.50,00,000 under Order XXXVII, Rule 2, C.P.C. The facts necessary for disposal of the above case are that the plaintiff is a businessman of Karachi and the defendant is a businessman of Faisalabad. The plaintiff through Cheque No.0000784642 of Standard Chartered Bank paid an amount of Rs.50,00,000 to the defendant for investment in the business of defendant. The plaintiff asked for the refund of the amount, the defendant issued cheque dated 11-6-2005 which was dishonoured on 16-6-2005. The summons of the suit was served upon the defendant through publication but neither the defendant made his appearance nor obtained leave from the court to defend the suit. The learned counsel for the plaintiff filed a statement dated 11-10-2007 and placed on record the original cheque of Rs.50,00,000 along with the memorandum issued by the Bank for return of the cheque issued by the defendant. Mr. Wajahat Abbas, learned counsel for the plaintiff, submits that the defendant has failed to obtain the leave of the court to defend the suit and the suit is liable to be decreed. He further submits that the plaint is on oath and the plaintiff by submitting the original cheque and memorandum has proved that the defendant has failed to repay the amount to the plaintiff. I have heard the learned counsel for the plaintiff and perused the record. The claim of the plaintiff that he had paid an amount of Rs.50,00,000 to the defendant through cheque which was repaid by the defendant through cheque which was dishonoured has gone unrebutted and unchallenged. The plaintiff has also produced the original cheque and its memorandum to prove his contention. The defendant has failed to obtain the leave from the Court to appear and defend the suit. Sub-rule (2) of rule 2 of Order XXXVII, C.P.C. provides that whele the defendant does not apply for leave or default in appearance and defence after obtaining leave, the allegation in the plaint shall be deemed to be admitted and the plaintiff shall be entitled to a decree. The suit is based on negotiable instrument and the presumption is that the same was issued against consideration and the defendant has not come forward to rebut the presumption. In view of the above the suit of the plaintiff is decreed with interest @ 6% per annum in accordance with sections 79 and 80 of the Negotiable Instruments Act from 16-6-2005 to the date of the suit and at the same rate from the date of the suit till the date of decree. The plaintiff is also entitled to interest @ 10% per annum from the date of the decree to the date of payment in accordance with section 34 of C.P.C. along with cost of the suit. Office is directed to prepare the decree in the above terms. S.A.K./A-114/K Suit decreed.