1987 PLP 2298 (CLC)

(2) 24‑8‑1971 ‑ By cheuqe No.AKEA‑447126 Rs.20,000 (3) Sale proceed of the car which was sold by Mr. Firdous Khan of Sarhad Bank Rs. 5,250 (4) Documents of Plot of Land in Ayub National Park Rawalpindi (Appx) Rs.35,000 Documents handed over to Mr. Z.U. Ahmed Legal Adviser to Sarhad Bank as the Bank insisted that Bank will sell the property themselves. Total: Rs.62,715" In counter‑affidavit filed on behalf of the respondent in Para 6 of the payments shown in para 4(l)(2)(3) of the application are impliedly admitted but it was stated that the said amount was placed in Suspence Account and it was adjusted in some other Accounts of Tariq Hassan. It is contended that the appellant No.2 had undertaken to pay the liabilities of his grandson Tariq Hassan and, therefore, the respondent exercising the general lien credited the same to other Accounts of Tariq Hassan. It is contended by the learned counsel for the appellants that the liability of appellant No.2 arose only on the basis of the documents executed by him which limited his liability and guarantee to Rs.1,70,000 for which he had executed the promissory note as well as the letter of guarantee and, therefore, the Bank could not have credited the said amount to any other Accounts. Whether there was any other undertaking given by the appellant No.22 as an issue that could be decided by the Court after holding trial. It was further contended that the averments made in pars. 4 (iv) is that the document of plot of the land in Ayub National Park Rawalpindi was handed over by appellant No.2 to Mr. Z.U. Ahmed Legal Adviser of respondent, who had not filed any counter‑affidavit to deny this averment. Therefore, the Court had to try the case to find out as to what became of this plot. It is contended that all these contentions of the appellant in their application and affidavit require trial and a plausible defence is made out by them, therefore, the Court without trial could not have fixed their liability. Reliance is placed on P L D 1963 S C 163 where their Lordships have made the following observations:‑ "Where the defendant discloses upon his affidavits facts which may constitute a plausible defence or even show that there is some substantial question of fact or law which needs to be tried or investigated into, then he is entitled to leave to defend. What is more is that even if the defence set up be vague or unsatisfactory or there be a doubt as to its genuineness, leave should not be refused altogether but the defendant should be put on terms either to furnish security or to deposit the amount claimed in Court. The principles upon which the provisions of Order XXXVII of the Code of Civil Procedure, 1908 should be applied are not dissimilar to the principles which govern the exercise of the summary power of giving liberty to sign final judgment in a suit filed by a specially endorsed writ of summons under Order XIV of the Rules of the Supreme Court in England. One of such principles laid down by the court of Appeal is that at the stage when leave to defend is sought the Judge is not to try the action; he is to see that there is a bona fide allegation of a triable issue, which is not illusory; he need not be satisfied that the defence will succeed: it is enough that such a plausible defence is verified by affidavit. Under Section 118 of the Negotiable Instruments Act, 1881 there is an initial presumption that a negotiable instrument is made, drawn, accepted or endorsed for consideration, but this presumption and the onus is on the person denying consideration to allege and prove the same. Mr. I.H. Zaidi appearing for the respondent could not satisfy us as to how the payments mentioned above specially payments at No. (2) and (3) which were made after the execution of promissory note, could be adjusted in some other account. He also could not satisfy the Court as to what happened to the documents of the plot. In our view plausible defence has been made out by the appellants and triable issues have been raised which require determination by the Court. We, therefore, allow this appeal, set aside the judgment/decree, grant the appellant leave to defend the suit. The appellants have already furnished security, which may be treated as the security for the purpose of the suit. H.B.T. /M-164/K Appeal allowed.