Recovery of money

Appellant/ Cantonment Board assailed judgment and decree passed in favour of respondents/plaintiffs to pay money for the services rendered

Plea raised by appellant/Board was that no notice under S.273 of Cantonments Act, 1924, was issued by respondents/plaintiffs prior to filing of suit

Validity

When appellant/Cantonment Board remained silent in its written statement about S. 273 of Cantonments Act, 1924, it had implicitly waived the protection under S. 273 of Cantonments Act, 1924

Appellant/Board was estopped from raising such plea subsequently which was a curable defect

Provision of S. 70 Contract Act, 1872, provides three requirements: (i) party claiming compensation must do something for another or deliver something to the party from whom he is claiming compensation; (ii) claimant must not intend to do the act or deliver goods gratuitously; and (iii) party from whom he is claiming must enjoy benefit of the act or goods

Respondents/plaintiffs satisfied all three ingredients of S. 70 of Contract Act, 1872

Even if there was neither any contract nor contractual term fixing compensation of service rendered, respondents/plaintiffs were even then entitled to compensation "quantum meruit" from appellant/Board

Division Bench of High Court declined to interfere in judgment and decree passed by Trial Court as the same had been passed on proper appreciation of facts and law and did not suffer from any illegality

Intra Court Appeal was dismissed, in circumstances.

Petitioner/plaintiff sought recovery of money from respondents/ defendants on the ground that the money was given in consideration of marriage of his three sons with three sisters of respondents/ defendants

Petitioner/plaintiff relied upon ex-parte judgments passed by Family Court

Judgment and decree passed by Trial Court was set aside by Lower Appellate Court

Validity

Ex-parte judgments of Family Court reflected that not a single penny was paid to sisters of respondents/defendants by plaintiff/petitioner on account of dower, maintenance or dowry articles

Existence of judgments of Family Court were relevant under Art. 57 of Qanun-e-Shahadat, 1984, to prove non-existence of fact in issue and relevant fact

Findings of Trial Court on relevant issue were result of non-reading of evidence and misinterpretation of law, which had rightly been set aside by Lower Appellate Court

High Court declined to interfere in judgment and decree passed by Lower Appellate Court and imposed special cost against petitioner/plaintiff who unnecessarily and with malafide intention dragged respondents/defendants into protracted litigation without reasons

Petitioner/plaintiff was guilty of bad faith by instituting, false vexatious and baseless claim against respondents/ defendants, therefore was liable to be penalized by imposing compensatory costs of Rs. 200,000/- (Rupees two hundred thousand) as compensation to respondents/defendants, as envisaged by S. 35-A, C.P.C.

Revision was dismissed, in circumstances.

Suit under O. XXXVII, R. 2, C.P.C. can be filed in respect of negotiable instruments which includes promissory notes as defined under S. 4 of Negotiable Instruments Act, 1881.

Respondent / plaintiff / Higher Education Commission filed suit for recovery of Rs.1,033,854/- against petitioners / defendants

Trial Court decreed the suit in favour of respondent / plaintiff

Validity

At the time of award of fellowship in question, there was no limit for a maximum number of students that a Supervisor could enroll with himself

Circular dated 10-03-2006 was issued only when petitioner / defendant / student had already been enrolled with the Supervisor

It was not petitioner / respondent / student's fault to give a go-bye to his ongoing scholarship/Ph.D studies, rather it was the University and/or the Higher Education Commission (HEC) which compelled him to quit his studies

Retrospective application of such policy decision of Advance Studies and Research Board on petitioner / defendant / surety was not only unjust, unreasonable but also something beyond any understanding

Higher Education Commission Supervisors were authorized to supervise Ph.D scholars/students

Higher Education Commission on its own adjudged the amount of expenditure spent on petitioner / defendant / student

There was no mention of actual amount in the plaint spent on petitioner / defendant / student's scholarship

There was also nothing on the record which would show that the funds released by HEC were actually utilized by the university on petitioner / defendant / student's scholarship

Trial Court decreed HEC's suit with 25% increase at the rate of prevailing bank mark-up of decretal amount i.e. Rs. 1,033,854/- from the date of the institution of the suit till realization of the actual amount

No such prayer was made by HEC in the suit regarding bank mark-up

No issue with respect to mark-up was framed by Trial Court but Trial Court exceeded its jurisdiction and granted the relief, which had in fact, not been sought for in the plaint

Suit was decreed as prayed for in addition to 25% bank mark-up and Trial Court should not have decreed the suit in its entirety

At best, Trial Court could have decreed the suit only to the extent of amount/expenditures spent on petitioner / defendant / student during his studies under the supervision

High Court set aside judgments and decrees passed by the two Courts below, which suffered from material irregularity

Constitutional petition was allowed accordingly.

Suit filed by respondent/plaintiff was decreed in his favour for recovery of Rs.4,000,000/- on the basis of Bank cheque which was dishonoured on presentation

Validity

Conclusive presumption was not envisaged under S. 118 of Negotiable Instruments Act, 1881, about drawing consideration etc. of negotiable instrument

Such presumption was rebuttable in nature and such was clear and obvious from the expression "until the contrary is proved" used in S. 118 of Negotiable Instruments Act, 1881

Respondent/plaintiff failed to prove his case as setup and that as to why he had paid a huge amount of Rs. 4,000,000/- to appellant/defendant simply on his request who had no blood or family relationship with him

High Court reversed findings of Trial Court on relevant issues and the same were decided in favour of appellant/defendant

High Court set aside judgment and decree passed by Trial Court, as it failed to appreciate evidence on record and committed an error while passing judgment and decree

Appeal was allowed, in circumstances.

Limitation Act, 1908, is a substantive law and after lapse of prescribed period provided under law valuable right accrues in favour of opposite party in whose favour an order or judgment is passed

Party aggrieved has to explain delay of each and every day showing sufficient cause

Petitioner/defendant gained knowledge on 09-09-2015 but filed application for obtaining certified copies on 10-10-2015 i.e. after lapse of prescribed period for filing application for leave to appear and contest the suit after service or gaining knowledge

Lethargic attitude adopted by petitioner/defendant could not be ignored because ignorance of law was not ground for condoning delay

High Court maintained order passed by Trial Court, as there was no illegality and irregularity committed rather vested jurisdiction was aptly and judiciously exercised while passing order in question

Revision was dismissed, in circumstances.

In suit for recovery of money on the basis of dishonoured cheques petitioners /defendants were refused leave to appear and defend the suit by Trial Court

Plea raised by petitioners / defendants was that amount of cheques was already paid to respondent / plaintiff on different occasions

Validity

Petitioners / defendants admitted issuance of cheques and dishonouring from bank

Defence that amount had been paid in different installments to respondent / plaintiff was imaginary and illusionary as petitioners / defendants did not mention any time / date / mode of payment etc.

High Court in exercise of Constitutional jurisdiction declined to interfere in order passed by Trial Court as the same was neither without jurisdiction, nor mala fide, void or coram non judice

Constitutional petition was dismissed, in circumstances.

Petitioner company completed a contract with respondents and sought recovery of its outstanding dues in foreign currency as well as in Pakistani Rupees

Plea raised by respondents was that amount would be paid on receipt of payment from another government entity

Validity

Another government entity had no privity of contract with petitioner nor petitioner privy to any arrangement between respondents and another government entity

No provision existed in the contract which would make discharge of respondents' obligation to make payment to petitioner contingent on the receipt of payment from another government entity

Unjustified for respondents to make discharge of its admitted contractual liability to petitioner subject to payment of amount due from another government entity

No disputed or controversial question of fact was on record which required recording of evidence

High Court directed respondents to pay the amount due to petitioner as the same had been admitted

Constitutional petition was allowed, in circumstances.

Plaintiff sought recovery of money on the basis of Bank cheque which was dishonoured on presentation due to insufficient funds but the suit was dismissed by Trial Court

Validity

Material contradictions existed between the stance taken by defendant in his evidence as well as in written statement

Evidence of defendant was so contradictory and sketchy that the same could not be used for declaring stance of defendant as correct

Defendant denied his signatures on the cheque however he did not make effort for its comparison which was necessary in order to ascertain actual position

Defendant was supposed to file application for comparison of signature, if he deemed that such stance was correct

Even Trial Court also did not make any effort in such regard as Trial Court had exclusive jurisdiction to send the matter to Handwriting Expert under Art. 84 of Qanun-e-Shahadat, 1984 for comparison of signatures

Initial presumption under S. 118 of Negotiable Instruments Act, 1881, was that a negotiable instrument/cheque was made, drawn, accepted or endorsed for consideration

Although such presumption was rebuttable yet onus was on the person denying consideration to allege and prove the same

Where execution of negotiable instrument was admitted, under S. 118 of Negotiable Instruments Act, 1881, the burden of proof of non-payment of consideration was upon the executant, and the same was lacking

High Court set aside judgment and decree passed by Trial Court and decreed the suit filed by plaintiff

Appeal was allowed, in circumstances.

Plaintiff sought recovery of money on the basis of Bank cheque which was dishonoured on presentation due to insufficient funds but the suit was dismissed by Trial Court

Validity

Material contradictions existed between the stance taken by defendant in his evidence as well as in written statement

Evidence of defendant was so contradictory and sketchy that the same could not be used for declaring stance of defendant as correct

Defendant denied his signatures on the cheque however he did not made effort for its comparison which was necessary in order to ascertain actual position

Defendant was supposed to file application for comparison of signature, if he deemed that such stance was correct

Even Trial Court also did not make any effort in such regard as Trial Court had exclusive jurisdiction to send the matter to Handwriting Expert under Art.84 of Qanun-e-Shahadat, 1984 for comparison of signatures

Initial presumption under S.118 of Negotiable Instruments Act, 1881, was that a negotiable instrument/cheque was made, drawn, accepted or endorsed for consideration

Although such presumption was rebuttable yet onus was on the person denying consideration to allege and prove the same

Where execution of negotiable instrument was admitted, under S.118 of Negotiable Instruments Act, 1881, the burden of proof of non-payment of consideration was upon the executant, and the same was lacking

High Court set aside judgment and decree passed by Trial Court and decreed the suit filed by plaintiff

Appeal was allowed, in circumstances.

Petitioner sought recovery of huge amount amounting to Rs.120.71 million from authorities with the plea that his vehicles were hired by them to maintain law and order situation at Gilgit

Validity

Authorities repudiated claim of petitioner therefore, intricate question of facts was involved in the matter and the same could not be resolved by Chief Court in its writ jurisdiction without recording of pro and contra evidence

Complicated question of facts pertaining to contractual liability could not be dealt with by Chief Court in its writ jurisdiction under Art.86(2) of Government of Gilgit-Biltistan Order, 2018

Matter required extensive recording of evidence of both parties and only Civil Court was competent to do that

Writ petition was dismissed in circumstances.

Consignment was not sent to consignee at proper address nor there was any evidence that consignee had not received consignment willingly and refused to pay charges

Plaintiff failed to establish through any evidence that he had any cause of action against defendant

Findings of courts below regarding decree of recovery, which was core issue, were result of misreading and non-reading of evidence as well as ignorance of law

Both courts failed to appreciate term 'Free on Board (FOB)' and distinction between 'Airway Bill (AWB)', 'House Airway Bill (HAWB)' and 'Master Airway Bill (MAWB)' which resulted into miscarriage of justice

Normally High Court did not interfere in concurrent findings of facts recorded by two courts below but when there was gross misreading or non-reading of evidence and patent violation of law floating on surface of such concurrent findings, High Court could not shut its eyes

High Court was under obligation to rectify error by interference in illegal findings

Courts below had failed to analyze facts and law on the subject and committed grave irregularity and illegality while passing judgments and decrees which could not be sustained in eyes of law

High Court set aside judgments and decrees passed against defendant as both courts below erroneously decreed suit filed by plaintiff while being contrary to law and to usage having force of law and same were liable to be interfered with

Revision was allowed in circumstances.

If a party/defendant had issued cheques in favour of plaintiffs and those cheques upon presentation could not be encashed because of closure of account, then such conduct of defendant was a mala fide one and was done with dishonest intention to defraud plaintiffs

Act of defendant amounted to dishonoring of cheques hence consequences would follow

Plaintiffs were entitled to recover their money along with statutory interest of 6% in terms of S.79 of Negotiable Instruments Act, 1881 from date of institution of suit till realization of money

Suit was decreed accordingly.

Plaintiff sought recovery of amount from defendant company which was operating from Tajikistan on basis of agreement between parties

Plaintiff also impleaded another person who was carrying on business in Afghanistan

Validity

Agreement, on basis of which suit was filed, stipulated an arbitration clause which fact was suppressed by plaintiff while obtaining ex-parte interim orders

Property in transit was perishable item and in terms of Notification SRO No. 932(I)/2012 dated 01-08-2012 jurisdiction of transit trade authorities was not extended to Tajikistan since no agreement existed between Pakistan and Tajikistan

High Court recalled interim order as court had no jurisdiction in terms of arbitration clause and prima facie it was a case of hardship to defendant with whom plaintiff had no direct privity of contract

Suit was dismissed in circumstances.

Plaintiff filed suit for recovery of money on the basis of cheque issued by defendant which was dishonored by Bank and Trial Court decreed the suit in favour of plaintiff

Plea raised by defendant was that the cheque was issued as a guarantee

Validity

Defendant appeared as his own witness and admitted during cross-examination that cheque bore his signatures and he did not file any suit for cancellation of the same

Defendant also admitted that he filed suit for rendition of accounts which was dismissed but he did not file any appeal against the same

Defendant admitted that cheque was given by him although he claimed the same to be as guarantee in blank

Previous business transactions between parties were admitted

Every negotiable instrument was presumed to have been issued against consideration

Although presumption under S. 118, Negotiable Instruments Act, 1881, was rebuttable yet it had to be rebutted by leading cogent evidence

No discrepancy was found in the judgment of Trial Court whereby the same could be declared to have been passed without lawful authority or based on erroneous exercise of jurisdiction

Judgment and decree passed by the Court below were based on proper appreciation of evidence available on record

Appeal was dismissed in circumstances.

Plaintiff filed suit for recovery of money on the basis of cheque issued by defendant which was dishonored by Bank and Trial Court decreed the suit in favour of plaintiff

Plea raised by defendant was that the cheque was issued as a guarantee

Validity

Defendant appeared as his own witness and admitted during cross-examination that cheque bore his signatures and he did not file any suit for cancellation of the same

Defendant also admitted that he filed suit for rendition of accounts which was dismissed but he did not file any appeal against the same

Defendant admitted that cheque was given by him although he claimed the same to be as guarantee in blank

Previous business transactions between parties were admitted

Every negotiable instrument was presumed to have been issued against consideration

Although presumption under S. 118, Negotiable Instruments Act, 1881, was rebuttable yet it had to be rebutted by leading cogent evidence

No discrepancy was found in the judgment of Trial Court whereby the same could be declared to have been passed without lawful authority or based on erroneous exercise of jurisdiction

Judgment and decree passed by the Court below were based on proper appreciation of evidence available on record

Appeal was dismissed in circumstances.

Judgment debtor was aggrieved of sale of property during proceedings for execution of decree in presence of stay order granted by Revisional Court

Plea raised by judgment debtor was that auction purchase did not deposit 25% of sale price at the spot and failed to deposit 75% of sale price within 15 days

Validity

Application of auction purchaser to deposit remaining 75% amount was kept pending and after order passed by revisional court, he was allowed to deposit remaining 75% amount which was accordingly deposited

Auction purchaser did not violate provisions of O.XXI, Rs.84 & 85, C.P.C.

Judgment debtor in concurrent findings recorded by two Courts below could not point out any jurisdictional defect, material irregularity or misreading and non-reading of record warranting interference by High Court in its revisional jurisdiction

Revision was dismissed in circumstances.

Plaintiff filed suit for recovery of money against defendant alleging that plaintiff/Higher Education Commission had awarded study scholarship to him to study abroad, and per their agreement, he was bound to return to Pakistan and serve plaintiff for specific period or otherwise return all scholarship expenditures incurred by plaintiff

Trial court, after recording evidence, dismissed the suit, but appellate court decreed the same

Validity

As matter of record, defendant having completed his studies, failed to return to Pakistan to serve the plaintiff as per their commitment

Plaintiff took necessary action against defendant calling upon him to honour his commitment but he resorted to lame excuses

Plaintiff was well within its right to demand from defendant to pay what defendant had received from it

Persons who had been selected for scholarship along with defendant had already returned to Pakistan and served their organization

No leniency could be taken with defendant, who had not honoured his commitment made with institution like the plaintiff

Plaintiff had proved its case through reliable oral and documentary evidence

Appellate court rightly decreed the suit, against defendant and his sureties had rightly been held liable to pay back all expenses incurred on him by plaintiff

No illegality was committed by appellate court in accepting appeal

High Court dismissed revision petition and maintained judgment and decree of appellate court

Revision petition was accepted in circumstances.

Money decree was passed by Court at place "F" and to satisfy the decree, Executing Court attached amount lying in account of judgment debtor at place "K"

Plea raised by judgment debtor was that bank account at place "K" was outside territorial jurisdiction of Executing Court at place "F"

Validity

If judgment debtor did not own property within the local limits / territorial jurisdiction of Court passing decree, sufficient to satisfy the decree, the decree could be transferred to the Court within the local limits of whose jurisdiction judgment debtor's other property was situated

Transferee Court could execute decree against such property as was situated within its territorial limits, otherwise no purpose would be served by keeping execution petition pending in the Court which had passed the same

Proper course for Executing Court was that for the satisfaction of decree, it should have transferred execution petition under S. 39, C.P.C. read with O. XXI, R. 6, C.P.C. to the Court, where bank accounts of judgment debtor were lying or where judgment debtor was residing

High Court set aside order passed by Executing Court and matter was remanded for deciding execution petition afresh

Appeal was allowed accordingly.

Objections were filed by defendant Authority and Single Judge of High Court declined to make award rule of the court on the ground that claim of plaintiff was barred by limitation

Validity

While hearing objections to award under Ss.30 and 33 of Arbitration Act, 1940, Court could not sit in appeal on award which had been passed after recording of evidence led by both the parties

Court was not to launch itself into an exercise of reappraisement of evidence or set itself as appellate Court, except when there was error on the face of award

Division Bench of High Court declined to interfere with findings of sole arbitrator as the award had been made in favour of plaintiff on the basis of evidence of defendant Authority itself, as barring limitation issue

Defendant Authority was not able to raise any substantial question and or objections which regard to merits of the case

High Court set aside the findings of Single Judge of High Court and award of sole arbitrator was made rule of the court

Intra Court Appeal was allowed in circumstances.

Defendant took plea that part of whole amount payable to plaintiff had been withheld on account of defective work on part of plaintiff and that no amount remained outstanding against him as representative of plaintiff had received the amount as full and final settlement of claim

Validity

No independent and trustworthy evidence was brought on record to prove that plaintiff had forgiven remaining amount claimed and that endorsement as to full and final payment had been made with plaintiff's consent

No misreading or non-reading of evidence could be pointed out on part of courts below nor any jurisdictional defect in impugned judgment and decree warranting interference

Scope of revisional jurisdiction was narrower and restricted to correction of error of law

Revision petition was dismissed in circumstances.

Suit filed by plaintiff for recovery of money was concurrently decreed in his favour by Trial Court and Lower Appellate Court

Plea raised by defendant was that Trial Court did not hear him before passing judgment in favour of plaintiff

Validity

Presumption of truth was attached under Art.129(e) of Qanun-e-Shahadat, 1984, to the record of Court

Nothing was brought on record to show that defendant was not heard, even affidavit of defendant or his advocate was not filed to such effect

Plaintiff proved his case on the basis of convincing evidence on record and Trial Court directed defendant to pay suit amount to plaintiff

Such finding of Trial Court was upheld by Lower Appellate Court and the same could not be disturbed unless it was shown that the findings were against evidence on record

Conditions for filing second appeal under S.100, C.P.C. were missing

High Court declined to interfere in judgments and decrees passed by two Courts below, as defendant failed to point out any illegality or infirmity in them

Second appeal was dismissed in circumstances.

If a law prescribed period of time for recovery of money, after it's lapse, recovery is not enforceable through Court.

Suit filed by plaintiff under O.XXXVII, rule 1, C.P.C. for recovery of Rs.15,00,000 was decreed ex parte in favour of plaintiff and Trial Court declined to set aside the judgment

Plea raised by defendant was that plaintiff relied upon "Iqrarnama", which was not a "promissory note"

Validity

In Iqrarnama an unconditional undertaking and assurance was incorporated that an amount of Rs.15,00,000 was payable by defendant and would be paid to plaintiff in two specific dates

Contents of the document were fully covered by definition of "promissory note" as defined in Negotiable Instruments Act, 1881

Trial Court rightly took cognizance and entire proceedings had been conducted in accordance with relevant law

Trial Court rightly passed ex parte judgment and decree against defendant and dismissed application under O.XXXVII, R. 4, C.P.C. for valid and lawful reasons

High Court in exercise of revisional jurisdiction declined to interfere in judgment and decree passed by Trial Court

Revision was dismissed in circumstances.

Defendant cannot appear and defend the suit under the provisions of O.XXXVII, R.2, C.P.C. unless he obtains leave from judge, whereas under the provisions of S.10 of Financial Institutions (Recovery of Finances) Ordinance, 2001, it is mandated that substantial questions of law and facts must be alive, which constitutes, "substantial questions of law and fact"

Defendant having overcome such hurdle becomes entitled to leave.

Defendant company being a juristic person was a legal entity, separate from its shareholders, the admission of liability by defendant/chief executive of the company could not be treated as admission of liability by defendant company

Defendant company despite filing of written statement, chose not to lead any evidence, challenging the claim of plaintiff against it

Nothing on record had been brought by defendant company not to accept the claim of plaintiff against it

Liability to pay was not denied by defendant company on the one hand and liability to pay was admitted by defendant/ chief executive, thus suit was decreed in terms that both the defendants would pay to plaintiff jointly and severally the amount claimed, with mark up at latest prevailing bank rate

Suit was decreed accordingly.

Single Judge of High Court dismissed the suit on the ground that terms of Pagree were not maintainable under the Rent laws

Validity

Was yet to be proved by way of leading evidence in the suit, if there was in vogue the system of Pagree in the market, where the shop was located or whether Pagree was received by deceased father of defendants for the shop

Single Judge . of High Court was misguided in holding that as Pagree was akin to Rent laws, the same could not be agitated

Plaintiff's case was that under section 65 of Contract Act, 1872, the defendants were under obligation to compensate plaintiff for the benefit they derived under void agreement (receiving of Pagree)

Division Bench of High Court set aside the judgment passed by Single Judge of High Court and suit was restored

High Court appeal was allowed in circumstances.

Defendant-company being a juristic person was a legal entity, separate from its shareholders, the admission of liability by defendant/chief executive of the company could not be treated as admission of liability by defendant-company

Defendant-company despite filing of written statement, chose not to lead any evidence, challenging the claim of plaintiff against it

Nothing on record had been brought by defendant-company not to accept the claim of plaintiff against it

Liability to pay was not denied by defendant company on the one hand and liability to pay was admitted by defendant / chief executive, thus suit was decreed in terms that both the defendants would pay to plaintiff jointly and severally the amount claimed, with markup at latest prevailing bank rate

Suit was decreed accordingly.

Suit was decreed in favour of plaintiff on failure of defendants to comply with condition imposed by Trial Court while granting leave to defend the suit

Validity

Trial Court had considered and brought on record the pro notes and receipts executed in favour of plaintiff, so it could not be said that Trial Court did not apply its mind to the facts of case or that the suits were decreed without any evidence

It was within the discretion of Trial Court to grant leave to defend the suit subject to imposition of condition, therefore, order of Trial Court in that regard was perfectly legal and could not be challenged by defendants

Sufficient time was given to defendants to comply with direction of Trial Court vis-a-vis furnishing of surety bonds but same were not complied with for no justifiable reasons

Trial Court rightly dismissed applications of defendants seeking leave to defend

Defendants failed to point out any irregularity or infirmity in the judgments passed by courts below

Supreme Court declined to interfere in the judgments passed by the courts below in favour of plaintiff

Leave to appeal was refused.

Trial Court allowed application for leave to defend the suit subject to deposit of surety bond before filing of written statement

Defendant did not comply with the order of Trial Court, resultantly his right of defence was struck off

Validity

Failure of defendant was rightly considered by Trial Court who had rightly struck off the right of defence of defendant

High Court declined to interfere in the order passed by Trial Court

Revision was dismissed in circumstances.

Plaintiff­ company opened Letter of Credit through defendant-bank and after import of goods, bank charged an additional money on the ground that bank did not obtain prior permission for establishing Cost and Freight Free Out Letter of Credit

Plea raised by plaintiff was that differential amount was to be paid due to negligence of bank officials

Validity

Bank was under legal obligation to know all laws in respect thereof and to follow them strictly

Bank admitted in its various communications that it had failed to obtain prior permission as envisaged under the law and had termed the same either to be through inadvertence or due to rush of work-Bank even accepted that no such mistake would be made by them in future and also admitted that legal formalities before opening disputed Letter of Credit were not fulfilled

Bank further admitted that error committed by it was due to inadvertence and rush of work

Such mistake of not obtaining prior permission from State Bank of Pakistan was on the shoulders of bank which it could not shift/transfer to plaintiff, who could not be penalized for no fault of theirs

If bank had committed some mistake by violating certain law and regulation, it should be the bank who would be suffering the agony of that mistake

Shifting of burden upon plaintiff would be illegal as the bank was negligent in performance of its obligations and it could not be pleaded by bank that amount recovered from it by State Bank of Pakistan would have to be borne by plaintiff

Bank was under obligation/duty to look after the interest of its clients to the best of its ability and not to penalize the clients for no fault of their as the bank had charged substantial amount in such regard from plaintiff for providing required services

Default of bank was apparent, it was inequitable to allow them to get benefit of their own wrong against plaintiff as nobody could be allowed to get benefit of their own misdeed/negligence

High Court decreed the suit in favour of plaintiff and against defendant

Suit was decreed accordingly.

Special summary procedure provided in O. XXXVII, C.P.C. envisages a special mechanism for trial of suits based upon negotiable instruments

Once leave to appear and defend the suit has been granted, same is converted into a regular civil suit and is to be tried accordingly.

Finger print Expert verified his report according to which he compared thumb impression of defendant in pro note and verified the same of defendant

Witnesses produced by plaintiff faced test of cross examination but nothing came out

Plaintiff proved his case through cogent and reliable evidence and defendant failed to prove any decision of arbitration on pro note

Trial Court had rightly decreed the suit of plaintiff against defendant and conclusion arrived at by Trial Court was elaborate and was based on cogent reason

No misreading or non-reading of evidence or any other legal infirmity had been pointed out by defendant, therefore, High Court declined to interfere in judgment and decree passed by Trial Court

Appeal was dismissed in circumstances.

Non-service of summonses in Form IV, Appendix B, C.P.C.-Trial Court granted to defendant leave to defend the suit subject to their furnishing of surety bond

Validity

Defendants had raised bona fide defence in their application for leave to defend the suit

Summonses were not served on one of the defendants in accordance with the requirements of O.XXXVII, C.P.C.

Defendants had specifically denied signatures on negotiable instruments and plaintiff did not place on record anything to indicate that cheque in question was issued for consideration

Executant of the cheque had passed away and the circumstances in which cheque was issued, presented and subsequently suit was filed, required further probe, recording of evidence and application of mind by Trial Court

Calling upon the defendants to furnish surety bond as a condition for grant of leave to appear and defend the suit was harsh and the same would cause hardship and might result in non-suiting the defendants on technicality, despite the fact that they might have a good defence

Order passed by Trial Court imposing condition of submitting of surety bond was set aside and leave to defend the suit was granted unconditionally

Revision was allowed accordingly.

Plaintiff produced original promissory note, legal notice, postal receipt, application forms for allotment of flat signed by defendant and sub-lease of flats

Defendant had chosen to remain absent and failed to appear in Court and to obtain leave to defend the suit, as provided under O.XX VII, R.2 (2) C.P.C.

Effect

Allegation of plaintiff was deemed to be admitted and he was entitled to decree

Suit was based on promissory note which was negotiable instrument and presumption was that same had been issued against consideration and defendant had not come forward to rebut such presumption

High Court decreed suit in the sum claimed with interest at 6% per annum in accordance with Ss.79 and 80 of Negotiable Instruments Act, 1881, from the date of suit till date of decree

High Court also awarded interest at the rate of 10% per annum from date of decree till the date when payment was realized in accordance with S.34 C.P.C.

Suit was decreed accordingly.

Defendant was dealer of plaintiff company and defaulted in payment on which plaintiff company filed suit for recovery of money from defendant

Validity

In order to discharge its burden of proof, plaintiff showed that it had provided goods on credit to defendant and defendant had failed to make payment against the same

Plaintiff produced sufficient material to show that goods were provided to defendant who had failed to settle the accounts

Plaintiffs witness produced dealership agreement, computerized statement of account, various sales invoices, delivery challans, balance confirmation and dishonoured cheques along with memorandum of bank, and such claims of plaintiff had gone unrebutted

Similarly affidavit in ex parte proof filed by plaintiff had also gone unrebutted as defendant neither cross-examined the witness of plaintiff nor produced his evidence in rebuttal

Dishonoured cheques issued by defendant also established that he was liable to pay amount to plaintiff thus plaintiff had proved its case and was entitled to relief prayed for

Suit was decreed in circumstances.

Appeal against judgment of Appellate Authority which was to be filed within 60 days of service of notice of order passed by Appellate Tribunal under S.46 of Sales Tax Act, 1990, was filed beyond said period

No departure from the express provision of Sales Tax Act, 1990 providing limitation for filing appeal, was permissible

Period of limitation prescribed by said special statute could not be condoned as section 29(2) of Limitation Act, 1908 envisaged that provisions of S.5 of the Limitation Act, 1908 were not applicable to special statutes

Appeal filed beyond prescribed period of limitation could not be entertained and proposed question could not be answered-.

When law required something to be done in a particular manner, then same must be done in that manner or may not be done at all.