1990 PLP 854 (CLC)

Date of hearing: 16th Febuary,1989. TANZIL‑UR‑REHMAN, J.‑‑This is a High Court Appeal against the judgment dated 5‑9‑1985 and decree dated 10‑11‑1985 passed by a learned single Judge of this Court in Suit No. 9/83.

2. The case of the respondent/plaintiff in the suit was that he advanced from 1977 onwards a sum of Rs. 1,51,000 in different, instalments, for the purpose of investment in business. The appellant paid him some profit but stopped paying the profit from June, 1979, onwards. The appellant issued a cheque in the sum of Rs.15,000 (Ex. 15) in favour of the respondent but the same remained unrealized. However, on 8‑12‑1980 the appellant executed an undertaking (Ex.18) to refund the said amount of Rs.1,51,000 but failed to make payment. This undertaking was followed by another undertaking dated 3‑1‑1981 (Ex. 19) to return the above amount in instalments. On failure to make payment even in instalments the respondent filed the above suit which was decreed by the learned single Judge in the said sum of Rs.1,51,000 with six per cent interest per annum.

3. Mr. Akhlaq Ahmed learned counsel for the appellant has submitted that the said undertakings Exs. 18 and 19 were got executed by the appellant under coercion and pressure brought on him by Martial Law Authority and, therefore, they have no basis for awarding decree. We enquired from the counsel if he had ever disputed the said undertakings during the entire period of more than two (sic) the negative. We are not impressed by this submission inasmuch as these two undertakings are on stamp papers as agreements executed in the City Court before two Notary Publics. We may also advert to the deposition of the appellant made before the learned single Judge that "though at first he deposed that Ex.18 A were executed before the Martial Law Authorities but subsequently corrected himself to say that settlement was arrived at before Martial Law Authorities but undertakings was executed in the city Courts' compound in the presence of Notary Public" (reference may be made to paragraph 8 of the impugned Judgment).

4. Learned counsel for appellant further submitted that the amount received by the appellant and the amount claimed by the respondent pertained to commission account with Messrs Golden Block Works or where the appellant was working as manager. This plea also has no substance for two reasons, firstly, that no such plea was taken in the written statement and secondly, the statement of account Exs. Nos. 17/1 to 17/6 is in the handwriting of the appellant himself which belies the contentions. Learned single Judge has correctly summed up the discussion on Issues Nos.1, 2 and 3, which is reproduced as under:‑‑ "The next question to be considered is what amount was paid by the plaintiff to the defendant. The plaintiff has produced also statements to have made two other payments of Rs. 25,000 and Rs.50,000 respectively for which no receipt was obtained. It will be seen that on the whole the plaintiff has (sic) defendant, whose statements are self‑contradictory and are contradicted by circumstances and other evidence on record. There appears to be no reason for the plaintiff to exaggerate the amount, which he paid to the defendant. Further more, the amount of the profits which he had admittedly received as per Exh.17, which payments the defendant claims by way of commission, also support the contention of the plaintiff with regard to the amount, which he paid to the defendant. He claims, that profit was being paid to him at the rate of 4‑1/2% per month. The last payment viz. Exh. 17/6, works out to be the payment at the rate of Rs.4‑1/2 % for ten months on the amount of Rs.1,26,

000. This payment is dated 7‑6‑1979. On the same date, the plaintiff further paid Rs. 25,000 to the defendant for which payment defendant admittedly executed the receipt which is Exh.13. Thus, if a sum of Rs.25,000 is added to Rs.1,26,000 the total amount comes exactly to Rs.1,51,

000. Therefore, the findings on Issues Nos. 1 and 2 are in affirmative and on Issue No.3 is in negative." As regards interest decreed by the learned single Judge Mr. Q.M. Rasheedi learned counsel for the respondent submits that the interest was not claimed by the respondent in the suit and so he does not press for it. The decree of interest is set aside. In result, the decree is modified to the extent of the principal amount I B claimed in the suit in the sum of Rs. 1,51,000 and costs only. The appellant will also bear the costs of the respondent in appeal. M.Y.H./A‑634/K Order accordingly.