2006 PLP 2870 (YLR)

MIAN SAQIB NISAR, J.

The respondent, brought a suit for recovery of an amount of Rs.1,28,800 against the appellants, on the basis of a cheque dated 6-11-1989, admittedly issued by the appellants in favour of the respondent, which was dishonoured by the bank on 28-11-1989. The appellants moved an application for leave to appear and defend, which was conditionally allowed by the Court and thereafter, the written statement was filed; issues were framed, parties were put to trial and the learned Court below has come to the conclusion that, the appellants had issued the disputed cheque, which has been dishonoured by the bank.

2. However, the defence of the appellants is that. subsequent to the disputed cheque, another cheque dated 12-11-1989 for an amount of Rs.1,63,772 was also issued by the appellants to the respondent with the condition that if this cheque is honoured, the respondent/plaintiff shall return the first cheque; as the subsequent cheque was encashed, resultantly, the respondent was under an obligation to return the first cheque and this was in fact a case of rendition of accounts of a dissolved firm between the parties B namely Messrs Mian Ahmad Zafar & Co. and thus, on the rendering of true accounts, the appellants were liable to make the payment of the disputed amount. To substantiate the plea, the appellants had produced the decision of the arbitrator dated 7-6-1996, but this has been ignored by the learned Court below.

3. I have heard the learned counsel for the parties and find that admittedly, the cheque in dispute was issued by the appellants to the respondent. It is also not denied that the same has been dishonoured. However, the case set out that, subsequently another cheque was issued with an understanding that if, the same is encashed, first cheque shall be returned, is not proved on the record. The decision of the arbitrator, on which, the appellants have mainly relied upon, this according to them, is in the nature of an award, but the same has never been made rule of the Court. Resultantly, it remains a simple piece of paper and cannot be considered as piece of evidence for substantiating the plea of defence raised by the appellants. I do not find that the appellants were able to prove their plea as stated above and resultantly, on the basis of the evidence on the record, the learned trial Court and I myself also on perusal of the same find that, the decree for the amount of Rs. 1.28,800 should be passed against the appellants/defendants and in favour of the respondent/plaintiff. This appeal thus, has no merits and is hereby dismissed. M.I./M-192/L? ?????????????????????????????? Appeal dismissed.