1982 PLP 123 (CLC)

2. On the above facts the plaintiffs brought the above suit for recovery of Rs.80,157.83 against all the defendants jointly and severally claiming costs of suit and interest at 13 % per annum with quarterly rests. 3. 'The defendant No. I has remained absent and has not filed any written statement. He was declared ex parte. The case has been ordered to proceed ex parte against him.

4. Defendants Nos. 2 to 4 have filed written statement on the basis of which in the light of the plaint the following consent issues were framed (1) Whether the promissory note dated 21‑4‑1973 executed by the defendants Nos. 2, 3 and 4 in acknowledgment of their liability is forged and fictitious. (2) Relief. The findings and reasons on the above issues are as follows :‑‑ Re‑Issue No. 1:

5. The plaintiffs halve examined one Mr. Feroze Shah Khan the officer in the plaintiff‑ Bank in support of their claim. The said witness has stated on oath that the loan was granted to the defendant No, I at the request of and guarantee of Col. F. S. Waheeduddin. In consideration of the aforesaid loan advanced by the plaintiff, the guarantor executed promissory note in favour of the defendant No. I on 19th May, 1967, (bxh. 5/1) and the same was endorsed by the debtor i. e. defendant No. 1 in favour of the plaintiff Bank. The promissory note was delivered to the plaintiff‑Bank alongwith the D. P. note Delivery Letter dated 19‑5‑1967 Exh. 5/2. The witness has also produced the agreement of pledge of securities (Exh. 5/3). Witness also produced Exh. 5/4 which is agreement dated 21st April, 1970. As noted above this document is signed by all the four defendants and the defendants 2 to 4 admitted on that date defendant No. 1 was liable to pair Rs.62,205.13 to the plaintiffs‑Bank. All the aforesaid defendants jointly and severally had undertaken to repay the said amount to the plaintiffs. On the same date the defendants Nos. 2 to 4 executed promissory note dated 21st April, 1970 Exh. 5/5 which was endorsed by the defendant No. I in favour of the plaintiffs and delivered to them (plaintiffs) alongwith the D. P Note Delivery Letter Exh. 5/6. As the amount remained unpaid, the defendants Nos. 2 to 4 executed a fresh promissory note on 21st April, 1973 Exh. 5/7 in favour of defendant No.

1. This promissory note on the same day was endorsed by the defendant No. 1 in favour of the plaintiffs as already noted above, for payment to them or to their order. It was only delivered to the plaintiffs alongwith D. P. Note Delivery Letter dated 21‑4‑1973 Exh. 5/8, by the defendants. This document Exh. 518, was executed by all the four defendants and bear their signatures. p w. 1 Feroze Shah Khan has deposed in his evidence that the promissory note Exh 5/7 and the D. P. Note Delivery Letter Exh. 5/8 were signed by the defendants in his presence. The witness identified the signatures of these four defendants on the above documents and expressly stated that the defendants were known to him. The learned counsel for the defendants cross=examined the above witness and he tried to show that the defendants Nos. 2 and 3 were not at Karachi on 21st April, 1973 when the promissory note Exh. 5/7 and the letter Exh. 5/8 are stated to have been signed. This suggestion of the learned counsel in the cross‑examination was expressly denied by the witness examined on behalf of the plaintiffs.

6. The defendant No. 1 as already noted above has been declared ex parte while the other defendants 2 to 4 have chosen to remain absent. The case was adjourned from time to time. On 19th May, 1980 at the request of the defendants 2 to 4 the case was again adjourned for hearing on the condition that no further time would be given. On 24th March, 1961 the case cam up for hearing when again at the request of the learned counsel for the defendants 2 to 4 the case was adjourned and it was noted on that date, that the defendants Nos. 2 to 4 were absent. Today again the defendants 2 to 4 are absent and have not stepped in the witness box or submitted to the cross examination.

7. In view of the evidence produced on behalf of the plaintiffs‑Bank, oral as well as documentary, it is conclusively proved that the defendant No. 1 had obtained the loan from the Bank and that the defendants 2 to 4 became liable to pay the amount by their express undertaking given in the agreement Exh. 5/4 and further supported by their promise vide promissory note Exh. 5/7 executed in favour of the defendant No. 1 who endorsed the same in favour of the plaintiff‑Bank which promissory note is for Rs.82,319.26. This promissory note was delivered by all the four defendants to the plaintiff‑Bank vide D. P. Note Delivery Letter Exh. 5/8 on 21st April, 1973.

8. It is accordingly held that the promissory note dated 21‑4‑1973 was executed by the defendants Nos. 2 to 4 in acknowledgment of their liability and that it is not a forged or fictitious document. Re‑ Issue No. 2:

9. The statement of account filed and produced in the Court (Exh. 5/9) shows that at the time of filing of the suit a sum of Rs.80,157.83 was due and payable by the defendants to the plaintiff‑Bank. No amount has been paid since the filing of the suit to the plaintiffs. In view of the findings given under Issu e No. I and the statement of account (Exh. 5/9) produced by the plaintiffs, and in the absence of any evidence in rebuttal, I hold that the plaintiffs have proved that the defendants are jointly and severally liable to pay Rs.80,157.83 with costs and interest at 13 % per annum with quarterly rests from date of Suit till payment.

10. Accordingly the suit is decreed with costs and interest as prayed. Suit decreed.