2015 PLP 1951 (CLD)

QALANDAR ALI KHAN, J.

This appeal by Muhammad Akhan, appellant, under section 96 read with Order XLI of the Civil Procedure Code, 1908, is directed against the judgment and decree dated 19-5-2014 of the learned trial Court/Additional District Judge-II, Abbottabad, whereby, suit of the appellant under Order XXXVII, C.P.C. for recovery of debt amount to Rs.2,750,000 on the basis of pronote executed on 12-7-2012 was dismissed. In his appeal, the appellant prayed for setting aside the impugned judgment and decree of the learned trial Court/Additional District Judge-II, Abbottabad, dated 19-5-2014; and decree, as prayed for in the suit, in favour of the appellant/plaintiff against the respondent/defendant, Muhammad Sultan Khan.

2. The facts unfolded by the appellant in the appeal are that a pronote was executed between the appellant and the respondent on 12-7-2012; and, simultaneously, an undertaking was also given by the respondent for payment of outstanding amount of Rs.2,750,000 by the respondent to the plaintiff upto 28-10-2012; but the payment was not made by the due date, therefore, the appellant/plaintiff lodged a suit under Order XXXVII, C.P.C. for recovery of the outstanding amount of Rs.2,750,000 against the respondent/defendant on the basis of the pronote dated 12-7-2012. In his plaint, the plaintiff/appellant averred that he had entered into a sale transaction with defendant/respondent at Salhad, Abbottabad, in the year 2009, for purchase of a plot on the road side, purportedly, owned by the defendant/respondent and had paid the sale consideration of Rs.2,750,000, but when the revenue record was checked, the property was not found in the ownership of defendant/respondent, resulting in the cancellation of sale transaction, and demand by the plaintiff/appellant for repayment of sale consideration; and on the failure of the defendant/respondent to repay the sale consideration, the pronote was executed on 12-7-2012, together with undertaking/affidavit on the same date for repayment of the sale consideration upto 28-10-2012, and when neither the pronote nor the undertaking/affidavit were honoured by the defendant/respondent, the suit was lodged under Order XXXVII, C.P.C.

3. The defendant/respondent moved application for leave to defend wherein he denied borrowing the amount from the plaintiff/appellant or entering into any other transaction with him, while claiming that his signatures and thumb impressions on the pronote and other documents were obtained under duress and coercion by the DDOR, regarding which he had also complained to the DCO Abbottabad. The defendant/ respondent was granted leave to defend despite resistance shown by the plaintiff/appellant to the acceptance of the application for leave to defend; and the defendant/respondent accordingly submitted his written statement, wherein, besides taking the plea of the pronote based on duress and coercion, the defendant/respondent also raised the plea that he had sold his properly to Mst. Fozia Qureshi and the plaintiff/appellant had entered into sale transaction with the said Mst Fozia Qureshi. In the written statement, the defendant/respondent also undertook to prove the pronote a result of coercion, on the basis of evidence.

4. The learned trial Court reduced pleadings of the parties to as many as seven issues, and also recorded respective evidence of the parties during trial, where after the suit was dismissed by the learned trial Court/Additional District Judge-II, Abbottabad vide judgment dated 19-5-2014, which is impugned herein, inter alia, on the grounds that payment of consideration of the pronote was not contemporaneous and was in fact made in the year 2009 and the pronote was an acknowledgement of the debt that the promissory note had itself accrued independent cause of action, without requiring the appellant to prove fact and circumstances of the transaction before the date of execution of the pronote; that execution of the pronote and simultaneously undertaking for repayment of the debt were never denied by the appellant, except the plea that his signatures and thumb impressions were obtained through force and coercion in the office of DDOR, Abbottabad; that the burden of proving use of force and coercion for obtaining his signatures and thumb impressions on the pronote was on the respondent but he failed to discharge the onus; that execution of the promissory note was proved through production of material witnesses; that the learned trial Court failed to appreciate the law relating to negotiable instruments, particularly, the provisions of section 118 of the Act; and that Mst. Fozia Qureshi, resident of Peshawar, had in fact introduced the respondent to the appellant, who fell victim to his dishonesty, culminating in the execution of the pronote dated 12-7-2012.

5. Arguments of Syed Altaf Hussain Shah, Advocate, for the appellant and Qazi Muhammad Azhar, Advocate, for the respondent heard, and the record perused with their valuable assistance.

6. The execution of pronote dated 12-7-2012 is not denied by the respondent; who, on the other hand, alleged that signatures and thumb impressions on the pronote were obtained through duress and coercion by the DDOR in his office, where he was made to sign/thumb impress the pronote. It may be added here that the pronote was not the only document executed on 12-7-2012 in respect of the outstanding amount of Rs.2,750,000, as another document in the shape of affidavit undertaking was also executed on the same date, also signed and thumb impressed by the respondent in the presence of the marginal witnesses, namely, Iftikhar-ud-Din and Rehmat Hussain, who appeared in the Court as P.Ws. 4 and 5 and fully supported execution of the pronote as well as the affidavit/undertaking. Their testimony in support of the pronote and affidavit/undertaking was questioned on the ground of their belonging to the same area to which the appellant belongs i.e. Khyber Agency; but it may be pointed out here that they are not the only two witnesses in support of the pronote and affidavit/undertaking, as the deed writer, Abdul Hameed (P.W.1), stamp vendor, Muhammad Waseem (P.W.2) and Muhammad Ibrahim Khan, Advocate, Notary Public (P.W.3) also appeared to substantiate execution of the pronote as well as affidavit undertaking, but they do not belong to Khyber Agency, rather they belong to the same place to which the respondent belongs i.e. defendant to first obtain leave to defend. Besides, section 118 of the Negotiable Instruments Act, 1881 attaches certain presumptions to a negotiable instrument promissory note, as under:- "

118. Presumptions as to negotiable instruments. Until the contrary is proved, the following presumption shall be made:-- (a) that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, endorsed, negotiated or transferred, was accepted endorsed, negotiated or transferred for consideration; (b) as to date

that every negotiable instrument bearing a date was made or drawn on such date, (c) as to time of acceptance

that every accepted bill of exchange was accepted within a reasonable time after its date and before its maturity; (d) as to time of transfer

that every transfer of a negotiable instrument was made before its maturity; (e) as to order of endorsements

that the endorsements appearing upon a negotiable instrument were made in the order in which they appear thereon; (f) as to stamps

that a lost promissory note, bill of exchange or cheque was duly stamped; (g) that holder is a holder in due course

that the holder of a negotiable instrument is a holder in due course: provided that, where the instrument has been obtained from its lawful owner, or from any person in lawful custody thereof, by means of an offence or fraud, or has been obtained from the maker or acceptor thereof by means of an offence or fraud, or for unlawful consideration, the burden of proving the holder is a holder in due course lies upon him." (emphasis provided) A bare reading of the above provision of would show that until the contrary is proved, there will be a presumption that the negotiable instrument was made for consideration. The contrary has to be proved, and proved by the party alleging non-genuineness of the promissory note, which is invariably under an obligation to prove the same, as failure on its part would, undisputedly, lead to the presumptions attached to the pronote. (1992 MLD 1007 (Karachi), (1993 CLC 2015 (Karachi), and 1991 CLC Note 42 (Karachi).

8. After his failure to prove use of force and coercion against him for obtaining his signatures and thumb impressions on the pronote and affidavit/undertaking, the learned counsel for the respondent vehemently urged the plea of non-payment of consideration by the appellant to the respondent at the time of execution of the pronote, as appeared from the testimony of witnesses of the appellant/plaintiff; but objection of the respondent to that effect is also devoid of force as payment of consideration for a pronote on the same date on which the pronote is executed is also not an essential requirement of law and even a consideration paid earlier in time is a good consideration. (1990 CLC 1018 (Karachi), (PLD 1993 Lahore 244) and (2001 CLC 318).

9. Adverting to the objection of the respondent regarding insufficient stamping of the pronote and non-cancellation of the adhesive stamps, suffice it to say that the pronote has been admitted in evidence without any objection with regard to the same being under-stamped, thus could not be challenged at any subsequent stage of the same suit. (1993 CLC 2015 (Karachi). It may be noted here that the pronote was exhibited in the statement of P.W.1 as Exh.P.W.1/1 and the only objection raised to its admissibility, was with regard to its genuineness and not to its being under-stamped or adhesive stamps not properly cancelled. Be that as it may, the adhesive stamps on the pronote bear signatures and thumb impressions of the respondent at different places, indicating their cancellation.

10. Having discussed merits of the case, it may also be pointed out that this is not the first and only case of its kind against the respondent, who, despite his old age, has been accused more than once for entering into transactions and executing pronotes etc. and then backing out from his own commitments/undertakings. In this case, too, the respondent not only executed the pronote but also an affidavit/undertaking for repayment of the amount of Rs.2,750,000 to the appellant and also signed the pronote and affidavit/undertaking as well as the relevant registers of the deed writer, stamp vendor and Notary public. Needless to say that after proof of execution of pronote, there was no need to prove sale transaction with respect to property between the appellant and the respondent or between respondent and the lady namely, Mst. Fozia Qureshi, introduced by the respondent/defendant in his written statement, albeit no reference to the alleged sale transaction between the respondent and the said Mst. Fozia Qureshi was made in the application for leave to defend.

11. In view of the foregoing discussion, the appeal is accepted and while setting aside the impugned judgment of the learned trial Court/Additional District Judge-II, Abbottabad dated 19-5-2014, the decree, as prayed for in the plaint/suit, is granted in favour of the appellant/plaintiff against the respondent/defendant, with no order as to costs. SL/329/P Appeal allowed.