1989 PLP 3498 (MLD)

Defendant Mst. Naseem Bano seeks under her C.MA. No. 7342 of 1988, leave to defend this summary suit.

2. Plaintiff Mahmood Shaukat filed this suit under Order 37 of C.P.C. for recovery of Rs.1,50,000 from the defendant.

3. As per the plaint, on 21-2-1988 defendant Mst. Naseem Bano borrowed from the plaintiff a sum of Rs.2,50,000 with promise to repay said amount on demand alongwith interest at 2% per annum. Such promissory note in the sum of Rs.2,50,000 was executed by the defendant in favour of the plaintiff in consideration of the loan. In order to receive back said amount, the plaintiff made first demand in April 1988 and second demand through notice dated 9-4-1988. In July 1988 he made move to file suit. Defendant paid to the plaintiff Rs.70,000 and then on 10-8-1988 Rs.50,000, Rs.1,50,000 promised to be paid on 11-8-1988 were not paid. Hence the suit.

4. I have heard Mr. Abdul Ghaffar Siddiqui, Advocate for the defendant and Mr. Shaukat Hussain Durrani counsel for the plaintiff.

5. Learned counsel for the defendant argued (i) that parentage of the plaintiff shown in the Promissory Note was different from the one given in the plaint, (ii) that the suit was not maintainable under Order 37, C.P.C. as it was not in respect of the entire amount of the pronote which was without consideration, (iii) that the document mentioned as "Pronote" was in fact a "bond" as it was attested by a Magistrate and not a pronote, (iv) that the pronote was executed under police pressure and coercion and not by free will, (v) that the plaintiff was not registered as "money-lender" under the W.P. Money-Lenders' Act, 1960 and the Rules framed under it, and hence his suit was not maintainable, (vi) and that charging of interest at a rate beyond 2% was illegal and contrary to the provision contained by the Usurious Loans Ordinance, 1959. In support learned counsel for the defendant cited the cases of (i) M/s. Habib Bank Limited v. M/s. Kaycee Corporation, Karachi P L D 1980 Kar. 143, (ii) Bheroolal v. Ghisulal A I R 1957 Rajasthan 387, (iii) Santosh Kumar v. Mool Singh A I R 1958 S C 321, (iv) Nazim v. M/s. Habib Bank Limited 1980 C L C 1185, (v) Oriental Fashions Limited and others v. National Bank of Pakistan P L D 1985 Kar.178.-

6. In (i) above it was observed that in order to bring the suit within the meaning of Order 37, C.P.C., it is to be judged whether decree can be passed for the principal amount due on the instrument and for the interest to be calculated on the basis of the instrument and in accordance with section 79 or 80 of the Negotiable Instruments Act. In (ii) above it was observed that where the language of a document showed that it was written for evidencing the debt obtained by the debtor with express promise to pay up the debt within a certain time and the document was attested by a witness and it was not payable to order or bearer then the same was a "bond" and not a promissory Note. In (iii) above it was observed on the basis of certain English authorities that whenever the defence raises a triable issue, leave must be given and when that is the case, it must be given unconditionally otherwise the leave may be illusory. It was also observed that if the Court is of opinion that the defence is not bona fide then it can impose conditions. It was also held that the power to impose conditions is only there to ensure that there will be a speedy trial. In (iv) above it was observed that if the defendant had a plausible case based on averments of fact or law contained in his defence, he was entitled to unconditional leave to defend the suit. In (v) above a Division Bench of this Court observed that it was discretionary for a Court to grant conditional or unconditional leave to defend, but such discretion was to be exercised judiciously and not arbitrarily or capriciously or in a manner which may defeat the ends of justice.

7. Learned counsel for the plaintiff conceded that there was clerical mistake in the plaint about parentage of the plaintiff. It was replied that the suit was maintainable and that the consideration for the pronote was paid on 21-2-1988, as per para. 1 of the plaint, but out of said amount Rs.1,00,000 were paid besides payment of Rs.20,000 as interest and that Rs.1,50,000 remained outstanding. It was argued that besides attestation by the Magistrate, the document executed by the defendant on 22-2-1988 continued to remain as pronote and it was not a bond. It was argued that the defendant had not been able to prove by any document that the pronote was executed under police pressure. It was further averred that this was a private loan and moreover W.P. Money Lenders' Ordinance, 1960 did not apply to Karachi as per section 1(2) of said Ordinance. It was also argued that W.P. Usurious Loans Ordinance, 1959 did not apply to this case. In support learned counsel for the plaintiff cited the case of M/s. Kohinoor Textile Mills Limited v. Gharo Textile Mills Limited P L D 1986 Kar. 157 and case of Bank of Credit and Commerce International (Overseas) Limited v. Ocean Ship Agent Ltd. and others 1986 M L D

720. In former case the view taken was, that the defence raised should not be a sham one but should raise a fair issue to be tried by the Court. Sham defence was explained as the facts alleged in the defence which would not amount to a valid defence in law even if true. Fair issue was explained to be a plausible issue in the sense that if the facts alleged were established there would be a tenable defence. In latter case the borrower of a Bank, who contended that the Promissory Note executed by him was without consideration, was not granted leave to defend, because execution of pronote and letters of guarantee, were not disputed and the statement of account showed that the amount of loan was due. In the present case the defendant has raised as many as six points, which are discussed above. He has raised many triable issues. Most of these issues require to be gone into deeply. In this way since the defendant has raised triable issues leave must be given to him to defend the suit, as observed by the Indian Supreme Court in (iii) above. The Supreme Court of Pakistan took view in the case of Abdul Karim Jaffrani v. United Bank Limited 1984 S C MR 568 that the discretion to impose conditions for granting leave to defend the suit, should be exercised with an end in view that the object of summary procedure was to provide for expeditious disposal of litigation involving commercial transaction of a particular nature, so that the defendant does not prolong the litigation. It was also observed that the Court was justified to impose conditions if the defendant tried to prolong the litigation. In the instant case there is no allegation if the defendant is trying to prolong the litigation. In the circumstances, the defendant is granted unconditional leave to defend the suit. M.Y.H./M-854/K Leave to defend granted,