1997 PLP 2809 (MLD)

S. Tasawar Hussain Rizvi for Plaintiff. Muneer A. Malik for Defendant. This application under Order 37, rule 3, C.P.C. has been filed by the defendant seeking unconditional leave to appear and defend the above suit. The plaintiff has filed this suit for recovery of Rs.5,97,661 under Order 37, C.P.C. against the defendant, which is travelling agency. The case of the plaintiff, as set up in the plaint, is that the defendant in the normal course of business obtained credit facilities from the plaintiff' for purchasing air tickets. That pursuant to such business transactions and on the demand of the plaintiff, the Chief Executive of the defendant executed a promissory note on 18‑12‑1991 for an amount of Rs.1 million. Promissory note has been filed as Annexure‑A with the plaint. 2. It is the case of the plaintiff that upto 20‑2‑1992 the suit amount was outstanding against the defendant. This figure is shown after deducting Rs.2,29,681 paid by the defendant on 14‑1‑1992. Since the defendant failed to pay the suit amount as such the plaintiff filed this case. 3. Mr. Muneer A. Malik, Advocate has filed affidavit‑in‑rejoinder of defendant today in the Court and a copy of the same was supplied to the learned counsel for the plaintiff who expressed his willingness to proceed with the case without seeking further instructions of the plaintiff. He has not denied execution of the memorandum of understanding filed with the rejoinder affidavit. However, his stand to Annexures B/1 to B/5 is that these receipts were executed in lieu of Katcha receipts for which the plaintiff has admitted acceptance of the amount vide para. 9 of the plaint. He has denied that the plaintiff received further amount of Rs.2,00,000 on 29‑3‑1992. Mr. Muneer A. Malik, Advocate for the defendant In support of his application has vehemently urged that the promissory note has been executed by one Shakir Hussain in his personal capacity and the same being descriptive in nature is not binding on the other directors of the defendant. He has raised several legal pleas but has not denied the statement of accounts filed as Annexure‑B with the plaint. He has also relied upon the case of Azmat Wali v. Hassan Al‑Adawi and others (1983 CLC 546) to show that even if any kind of defence is made out, be it plausible or even illusory, the defendant is entitled for unconditional leave. He has also urged that the balance amount of Rs.3,97,000 was paid in cash to one Nusrat Hussain son of the plaintiff. He has prayed for unconditional leave to appear and defendant the above suit. 4. Mr. Tasawer Hussain Rizvi, learned counsel for the plaintiff has stated that in view of the admission of the defendant about the business transaction and about the figure mentioned in statement of account filed as Annexure‑B to the plaint, the suit is entitled to be decreed. According to the learned counsel for the plaintiff, the defendant has failed to make out an arguable and plausible defence and this application is liable to be dismissed with costs. 5. Prima facie from the documents filed by the defendant, it appears that after the date 14‑1‑1992 when the total balance of Rs.8,27,342 was outstanding the defendant has paid Rs.2,29,681 upto 20‑2‑1992 and a further amount of I Rs.2,00,000 on 29‑3‑1992. The stand of the defendant that the remaining amount of Rs.3,97,000 was paid in cash to the son of plaintiff is neither convincing nor plausible.` Annexure‑A to the plaint has been signed by Shakir Hussain as Chief Executive of the defendant‑which is binding on the company. 6. In view of the law laid down in Fine Textile Mills Limited v. Haji Umar (PLD 1963 SC 163) and in the case of Azmat Wali v. Hassan Al‑Adawi and others (1983 CLC 546), this application is entitled to be granted as the defence proposed in the application under reference appears to be genuine, plausible and arguable. I, therefore, grant this application. The defendant is granted conditional leave to appear and defend the above suit on furnishing security in the sum of Rs.4,00,000 to the satisfaction of Nazir of this Court, which is to be .filed with 30 days of this order. Civil Miscellaneous Application No. 1008 of 1995 stands disposed of. A.A./C‑3/K???????????????????????????????????????????????????????????????????????????????????????? Leave granted.