1997 PLP 766 (CLC)

M. Naveed Qureshi for Defendants. This is an application moved by defendants under Order XXXVII, rule 3, C.P.C. for allowing them to appear and defend the suit unconditionally. The brief facts leading to this application are that the plaintiff filed this suit under Order XXXVIL C.P.C. for recovery of Rs.8,16,380 against the defendants. The case of the plaintiff, as set out in the plaint, is that the plaintiff is a registered company and doing business as travelling agent under the licence of Travel Agencies Act, 1976, and is also a member of LATA. Defendant No. 1 is a partnership firm, doing business as Travelling Agents. They started preparing tickets with the plaintiff company from the .month of August, 1993 and had been making tickets from the plaintiff company for their clients till the end of February, 1994. The defendants had been in debts of Rs.13,02,681 in respect of the cost of the tickets. However, the defendants to clear some payments paid an amount of Rs.8,16,380 to the plaintiff through cheques, the details of which is as under:‑‑‑ (a) UBL Cheque of Rs.3,50,000 dated 26‑2‑1994. (b) UBL Cheque of Rs.4,00,000 dated 13‑3‑1994. (c) UBL Cheque of Rs.0,66,380 dated 13‑4‑1994. In the month of February, 1994 the defendants requested the plaintiff to delay, the tender of the abovesaid cheques to the defendants Bank till middle of April 1994, therefore, the plaintiff tendered the said cheques on 13‑4‑1994 and 21‑4‑1994 in the defendants Batik, but the same were dishonoured. The plaintiff has made several demands for payment of the amount of dishonoured cheques, but the same has been avoided by the defendants. The defendant No.2 in support of his application has filed affidavit, in which it has been stated that all the payments were made by them to the plaintiff in cash. They raised the plea that the photostat copies of cheques annexed with the plaint, are bogus and manufactured as it was never issued by defendant No.2. It has also been stated that the suit is not maintainable as the plaintiff is a private limited company and no resolution of the company has been filed with the plaint, therefore, Abbas Ahmad is not an authorised person to file the suit. Objections to this application have been filed by the Advocate of plaintiff alongwith affidavit of Mrs. Afsheen Zubair, Director of the plaintiff Company, in which it has been stated that the application is time‑barred and that the plaintiff has strong case against the defendants as the cheques have been dishonoured by the defendants' Bank. Affidavit‑in‑rejoinder has been filed by defendant No.2 alongwith photo copies of ledger, vouchers etc., showing that he had made payment to the plaintiff and nothing was outstanding against him. I have heard the learned counsel for the parties and gone through the material available on record. Although the plaintiff is in possession of documentary evidence in the shape of cheques, but the defendant has specifically denied his signatures on the same and has raised the plea that the same are fabricated and his signatures have been manufactured by the plaintiff. Defendants have also raised a plea that the amount was paid in cash and that they have produced such receipts. The defendants have raised legal as well as factual pleas which could only be decided by allowing the parties to lead their evidence. I am, therefore, of the humble view that the defendants have made out a prima facie case for leave to defend the suit. As far as the plea of the plaintiff's counsel that the application is time‑barred is concerned the defendants were never served with the Court notice. They only came to know about the filing of the suit when the notice was published in Daily Dawn and thereafter they appeared in Court I and moved the above application. For the reasons discussed above, I allow this application and the defendants are granted leave to defend the suit. A.A./S‑44/K Application allowed.