2009 PLP 1129 (CLD)

MUHARREM G. BALOCII, J.

Plaintiff has brought this suit for recovery of Rs.9,000,000 (Nine Million) under order XXXVII, C.P.C. Precisely, the facts of the plaintiffs case are that the plaintiff is a leading businessman in construction and development areas and is also one of the directors of Messrs Omema Construction (Pvt.) Ltd. established under Companies Ordinance, 1984, carrying on business of building and construction at Karachi. The plaintiffs said company constructed a project known as Savanna City at Plot No.1 Survey Nos.201, 202, 203, Block 13-D III, KDA Scheme No.24, Gulshan-e-Iqbal, Karachi, and presented the same for allotment/booking of public at large. According to the plaint, the defendant booked one flat bearing No.A-610, Block-A1-2, admeasuring about 159 sq. yards for himself as well as two other flats bearing No.612, Block-2, 6th floor in the name of Shehnaz Begum wife of Fareed-ud-Din and Flat No.A-609, Block-A1-2, 6th floor in the name of Muhammad Saeed son of Muhammad Yaseen. It was further pleaded in the plaint that in order to obtain facility of loan from the Financial Institution, the company also executed Indenture of Sublease in favour of respective allottees, as stated above, even without clearance/payment of full and final sale consideration. The plaintiff further pleaded that the defendant is/was businessman dealing in sale/purchase of cars under the name and style of Messrs Fine Car, so also he was engaged in business of properties, therefore, business relationship between the plaintiff and the defendant was established and the defendant in the month of October, 2005 requested the plaintiff for friendly loan of Rs.9,000,000 refundable on demand. The plaintiff, keeping in view the above mentioned relationship, agreed to extend the loan. According to the plaint on 15-11-2005 the plaintiff out of his own funds paid an amount of Rs.9,000,000 to the defendant against execution of promissory note payable on demand in presence of the witnesses on a clear understanding of refundable on demand. The plaintiff pleaded that in the month of November, 2006, he demanded the refund of the amount, as stated in the promissory note to which the defendant delayed the same on one or the other pretext. Ultimately, the defendant disappeared and despite hectic efforts the plaintiff could not search him. It is further pleaded that for the last five months from the filing of the suit the whereabouts of the defendant were not known, therefore, it was believed that he has gone underground with mala fide intention and ulterior motives to evade his creditors including Lie plaintiff. The plaintiff further pleaded that he served legal notice dated 12-4-2007 upon the defendant on the address as given in the promissory note but the defendant failed to reply and comply with just demand of the plaintiff. Hence, the plaintiff filed this suit with following prayers:-- (i) Decree for a sum of Rs.9,000,000 (Rupees Nine Million Only) along with mark-up at Bank rate till realization of amount. (ii) Cost of the suit. (iii) Any other relief(s), this Honourable Court deem fit and proper under the circumstances of the case. The summons were issued against the defendant through all modes of service including publication made in Daily Jang in its circulation dated 9-2-2009 but no one turned up on behalf of the defendant. Consequently, the service was held good and the time was allowed to the defendant to file the written statement but he failed to file the same within the stipulated time, therefore, the matter was placed before the Court for final disposal. Mr. Kamal Azfar, learned counsel for the plaintiff, in support of the claim of the plaintiff has filed following documents along with statement, which were taken on record:-- (1) Promissory Note dated 15-11-2005. (2) Legal notice dated April 12, 2007. (3) TCS postal receipt dated 13-4-2007. (4) Application form of Mst. Shehnaz Begum signed by the defendant. (5) Application form of Muhammad Saeed also signed by the defendant. (6) Application form of the defendant. (7) Photocopy of sublease of Flat No.A-610. (8) Photocopy of sublease of Flat No.A-609. Learned counsel for the plaintiff has argued that this is suit for recovery based on promissory note in which the defendant has not appeared in Court despite service of summons of suit upon him and thus it is presumed that the defendant has admitted the claim of the plaintiff, therefore, he is entitled for decree of the suit, as prayed. He has placed reliance on the case of Syed Aijaz Hussain v. Syed Abdul Azeem 2008 CLC

41. I have heard learned counsel for the plaintiff and perused the material placed on record. The claim of the plaintiff is that he advanced/extended a loan amounting to Rs.9 Million to the defendant against execution of Promissory Note dated 15-11-2005 and he demanded refund of the same in the month of November, 2006 to which the defendant kept him on false hopes and promises on one or the other pretext and ultimately he disappeared and plaintiff could not search him. According to the plaintiff the defendant has gone underground with mala fide intention and ulterior motive in order to evade his creditors including the plaintiff. The above contention of the plaintiff is un-rebutted and unchallenged. The plaintiff has produced the original Promissory Note dated 15-11-2005, legal notice dated 12-4-2007, TCS postal receipt dated 13-4-2007, application forms of Messrs Shehnaz Begum and Muhammad Saeed signed by the defendant, application form of the defendant, photocopy of sublease of Flats Nos.A-609 and A-610. It is also evident from the record that the defendant has chosen to remain absent and failed to appear in Court and obtain leave to defend the suit, as provided under sub-rule (2) of Rule 2 of Order XXXVII, C.P.C. therefore, the allegation shall be deemed to be admitted and the plaintiff shall be entitled to a decree. Furthermore, the suit is based on Promissory Note, which is negotiable instrument and the presumption is that the same was issued against the consideration and the defendant has not come forward to rebut this presumption. In view of the above the suit is decreed in the sum of Rs.9,000,000 (Nine Million) with interest at 6% per annum in accordance with sections 79 and 80 of the Negotiable Instruments Act from the date of the suit till the date of decree. The plaintiff is also further awarded interest @ 10% per annum from the date of the decree till the date the payment is realized in accordance with section 34, C.P.C. with no order as to costs. M.H./M-81/K Suit decreed.