1992 PLP 1913 (CLC)

‑‑‑‑OXXXVII, Rr.2 & 3‑‑‑Suit for recovery of amount in summary proceedings on negotiable instruments‑‑‑Application for leave to appear and defend suit‑‑‑Where plaintiff had claimed compensation and damages on account of fall in purchasing power of Pakistani Currency in addition to claim of principal amount and interest thereon and had also not filed statement of account showing how the amount claimed in suit had been worked out by them, case was held to be fit and appropriate for grant of leave to defend. IA. Lari for Plaintiffs. Muhammad Yaseen Azad for Defendants. This is an application under Order XXXVII, Rule 3, C.P.C., requesting for leave to appear and defend the suit. The facts pertinent for the decision of this application are that there were dealings between the plaintiff and the defendants and for the service and assistance rendered by the plaintiffs to the defendants an amount of Rs.5,15,183.39 had remained due and payable to the defendants. As a part payment towards this amount, the defendants had issued a cheque dated 22‑7‑1985 for Rs.3,00,000 drawn on United Bank Ltd., Pak Chambers Branch, Karachi, in favour of the plaintiffs. This cheque according to the plaintiffs, was dishonoured when it was presented to the bank for encashment. The plaintiffs, therefore, have filed the present suit under Order XXXVII, C.P.C. for the recovery of Rs.3,00,000 plus Rs.1,30,000 as interest due on the said amount. The case of the defendants is that after the said cheque was returned by the bank unpaid, the defendants paid an amount of Rs.2,00,000 to the plaintiffs by two cheques, viz., cheque No.071331 and cheque No.071329, both dated 1‑9‑1985, each for Rs.1,00,

000. Again, according to the defendants, they paid an additional amount of Rs.1,00,000 to the plaintiffs by cheque No.071330 dated 1‑10‑1985. Consequently, according to the defendants, nothing is due to the plaintiffs. It is pertinent to point out that in the counter‑affidavit, filed on behalf of the plaintiffs, the plaintiffs have admitted only one payment of Rs.1,00,000 by cheque dated 1‑10‑1985 but they have denied to have received any other payments from the defendants. However, according to the plaintiffs, this amount of Rs.1,00,000 was paid to them only to liquidate the previous outstandings of the defendants: Consequently, according to the plaintiffs, the entire amount of Rs.3.00.000 and Rs.1,30.000 by way of interest is still due and payable from the defendants. As far as the case of the defendants is concerned, no documentary proof has been adduced in support of their claim in order to establish a prima facie case in their favour. The plaintiffs have only admitted to have received Rs.1,00,000 by cheque dated 1‑10‑1985 from the defendants and that also was a payment made towards the previous outstandings. However, as far as the amount of Rs.1,30,000, charged by the plaintiffs from the defendants as interest, is concerned, it is not clear whether the entire amount had become due to the plaintiffs on account of interest because, according to the counter affidavit filed on behalf of the plaintiffs, this amount was due on account of "interest/damages/compensation in view of the fall in the purchasing power of Pakistani Rupee'. Needless to say that in a suit filed under Order XXXVII. C.P.C., although the plaintiffs can claim interest due on the principal amount but they cannot claim damages or compensation on account of the fall in the purchasing power of the Pakistan Rupee. It is, therefore, clear that part of the plaintiffs' claim is outside the purview of Order XXXVH, C.P.C. The plaintiffs have also not filed any statement of account showing as to how this amount of Rs.1,30,000 has been worked out by them. In view of the aforesaid circumstances, this appears to be a fit case for grant of leave to the defendants to defend the suit. Leave is, therefore, granted to the defendants to defend the suit subject, however, to their furnishing security in the sum of Rs.3,00,000 with the Nazir of this Court. The security may be furnished within one month. The C.MA. stands disposed of. H.B.T./N‑417/K ???????????????????????????????????????????????????????????????????? ??????????? Application allowed.