Negotiable instrument

Held, that provisions of S. 118 of the Negotiable Instruments Act, 1881 and O. XXXVII, R. 2(2) of the Civil Procedure Code, 1908, indicate that statutory presumption is attached with a negotiable instrument

Such presumption operates in favour of plaintiff unless and until leave to defend is granted

Where the Court, seized with such a suit, refuses leave to defend or where a defendant fails to fulfill a condition attached to a leave granting order or fails to apply within the prescribed time for leave to defend, then the Court shall decree the suit without any further proof of the suit on the basis of statutory presumption under S. 118 of the Negotiable Instruments Act, 1881

However, where the very execution of instrument is denied and leave is granted by the Court, then the said initial presumption in favour of plaintiff would not arise

In such a case, the mode of disposal of the suit from summary would convert to ordinary regular form of suit

In such circumstances the consideration for discharging the burden of proof would be the same as in an ordinary civil suit pending before a Civil Court

In the present case, after grant of leave to defend, appellant's predecessor submitted written- statement and denied execution as well as consideration of three cheques, sued upon

Therefore, the burden of proof of the execution of cheques by appellant' predecessor as well as consideration was upon the appellant

Appellant produced the official witnesses who merely produced the record of impugned cheques and dishonor slips and he had not led any evidence to prove that indeed the impugned cheques were executed towards fulfillment of an obligation or towards consideration

Appellant's own statement, without proof of consideration independently through concrete evidence, was not sufficient to prove his claim

Since, the appellant failed to discharge burden of proof, therefore, the burden did not shift upon the shoulders of defendants/respondents to disproof in rebuttal as the same would not make any difference

Defendants in evidence denied execution of the impugned cheques as well as the consideration mentioned therein

Thus, the Trial Court had misinterpreted S. 118 of the Negotiable Instruments Act, 1881 and was wrong in placing the onus of proof of relevant issue on the defendants

High Court set-aside the impugned judgment being not sustainable in law; resultantly, suit instituted by the appellant was dismissed

Appeal filed by the plaintiff was dismissed with costs of Rs. 50,000/- and costs of proceedings.

Held, that provisions of S. 118 of the Negotiable Instruments Act, 1881 and O. XXXVII, R. 2(2) of the Civil Procedure Code, 1908, indicate that statutory presumption is attached with a negotiable instrument

Such presumption operates in favour of plaintiff unless and until leave to defend is granted

Where the Court, ceased with such a suit, refuses leave to defend or where a defendant fails to fulfill a condition attached to a leave granting order or fails to apply within the prescribed time for leave to defend, then the Court shall decree the suit without any further proof of the suit on the basis of statutory presumption under S. 118 of the Negotiable Instruments Act, 1881

However, where the very execution of instrument is denied and leave is granted by the Court, then the said initial presumption in favour of plaintiff would not arise

In such a case, the mode of disposal of the suit from summary would convert to ordinary regular form of suit

In such circumstances the consideration for discharging the burden of proof would be the same as in an ordinary civil suit pending before a Civil Court

In the present case, after grant of leave to defend, appellant's predecessor submitted written- statement and denied execution as well as consideration of three cheques, sued upon

Therefore, the burden of proof of the execution of cheques by appellant' predecessor as well as consideration was upon the appellant

Appellant produced the official witnesses who merely produced the record of impugned cheques and dishonor slips and he had not led any evidence to prove that indeed the impugned cheques were executed towards fulfillment of an obligation or towards consideration

Appellant's own statement, without proof of consideration independently through concrete evidence, was not sufficient to prove his claim

Since, the appellant failed to discharge burden of proof, therefore, the burden did not shift upon the shoulders of defendants/respondents to disproof in rebuttal as the same would not make any difference

Defendants in evidence denied execution of the impugned cheques as well as the consideration mentioned therein

Thus, the Trial Court had misinterpreted S. 118 of the Negotiable Instruments Act, 1881 and was wrong in placing the onus of proof of relevant issue on the defendants

High Court set-aside the impugned judgment being not sustainable in law; resultantly, suit instituted by the appellant was dismissed

Appeal filed by the plaintiff was dismissed with costs of Rs. 50,000/- and costs of proceedings.

Section 118 of the Negotiable Instruments Act, 1881, does not envisage a conclusive presumption about drawing consideration etc. of the negotiable instrument, rather, without any fear ofcontradiction, it can be held to be rebuttable in nature and this is soclear and obvious from the expression used in the said S. i.e. "until the contrary is proved”

Presumption attached with negotiable instruments is always rebuttable and if a plaintiff fails to produce creditworthy evidence then he cannot be allowed to turn around and invoke the presumption contained under S.118 of the Negotiable Instruments Act, 1881

In the present matter , the respondent/plaintiff had failed to discharge the initial burden and therefore had not been able to shift the onus, in circumstances

Presumption contained in Art. 118 stood rebutted since the court had to act on the basis of preponderance of evidence

Respondent/plaintiff failed to prove his case as setup in the plaint and the Trial Court failed to appreciate the evidence on record and committed an error while passing the impugned judgment and decree

High Court set-aside impugned judgment and decree passed by the Trial Court and resultantly, the suit was dismissed

Appeal filed by the defendant was accepted accordingly.

Parties were ex-husband and wife and suit was filed by respondent/plaintiff for recovery of money on the basis of dishonored Bank cheques

Trial Court relied upon written statement of appellant/defendant (husband) filed in another suit filed by respondent/plaintiff (wife) against her previous father-in-law

Trial Court declined to grant leave to defend and suit was decreed in favour of respondent/plaintiff

Validity

Presumption under S. 118 of Negotiable Instruments Act, 1881 was attached to negotiable instrument and burden was upon the person denying the same to prove to the contrary

Such presumption was rebuttable by evidence

Parties were spouse at the relevant time, so there could be probability of stance taken by husband

Without providing opportunity to appellant/ defendant to prove his stance through leading evidence his stance could not be discarded straight away on the basis of presumption that the version of appellant/defendant would be wrong or erroneous

Respondent/plaintiff denied claim of appellant/defendant through her counter affidavit but it was difficult at such stage to decide such dispute in absence of evidence of the parties

Trial Court denied leave to defend application of appellant/defendant on the premise of relying on contents of written statement of appellant/defendant allegedly filed by him in another suit, instituted by respondent/plaintiff against her former father-in-law

Trial Court while dismissing application to defend the suit filed by appellant/defendant, did not consider legal status of the pleadings of another suit

When no evidence is recorded, then contents of written statement could not be treated as proved and believable, as true and correct

Contents of pleadings of any other suit could not be considered in another matter for deciding fate of it, which suits have no nexus with each other

Prima facie there was substantive dispute between parties, which required deeper inquiry

High Court remanded the case with direction to Trial Court to decide leave to defend application of appellant/defendant afresh

Appeal was allowed accordingly.

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

Such presumption is rebuttable but onus is on the person denying consideration to allege and prove the same

Where execution of negotiable instrument is admitted, burden of proof of non-payment of consideration lies on the executant.

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.

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.

Held, that appellant in his written statement stated that he had no introduction with the respondent, but conceded that respondent was well known to appellant's elder brother; that he borrowed an amount from the respondent; and appellant had also conceded that he put his thumb impressions on some documents securing the borrowed amount from respondent

In appellant's depositions as witness, he conceded that he had affixed his thumb impressions on papers and that the respondent obtained his picture

In appellant's examination-in-chief ,he had deposed that he borrowed an amount for his elder brother "A.Y" who was never produced in evidence, but during cross-examination appellant had admitted that said amount was borrowed for appellant's own use

Appellant admitted that while making repayments, no one accompanied him nor he obtained any receipts of those repayments

Serious contradictions were found in the evidence of appellant and after such glaring admissions in appellant's cross-examination ,there was no need for the respondent to produce any evidence in rebuttal whose deposition was even otherwise consistent with his suit and also consistent with the depositions of other witnesses

Once in affirmative evidence respondent had discharged his onus, the same was shifted to appellant who had an opportunity to rebut the same through trustworthy and reliable evidence

Not only serious contradictions were found in appellant's deposition, but also categorical admission of appellant's thumb impressions on promissory note and receipt of promissory note

Promissory note as well as receipt annexed in plaint had clearly reflected that the suit amount was mentioned in Urdu language as well as in numbers in three different columns and even the receipt described the half amount

Stance of appellant that through forgery, amount of Rs. 25000/- had been mentioned as Rs.125,000/- represented a concocted story

Subject matter was lawfully proved and presumption attached to it under S.118 of the Negotiable Instruments Act, 1881, was not rebutted or proved to be contrary by appellant/defendant, rather the admissions made by appellant/ defendant in his cross-examination demolished the whole defence and the grounds agitated in the appeal

Simple denial in appellant's evidence or reply to every sentence, the question or suggestion in the negative in pleadings or depositions also operated against appellant

Appeal was dismissed being meritless.

When any condition had been attached with a promissory note then it would bring the same out of the ambit of negotiable instrument

Interest having been included in the promissory note, therefore same was not a negotiable instrument

Presumption was attached to a negotiable instrument but the same was rebuttable

Plaintiff was bound to prove the execution of document in accordance with law

Plaintiff had failed to prove the receipt of money by the defendant

No decree should have been passed in favour of plaintiff, in circumstances

Impugned judgment and decree passed by the Trial Court were set aside and suit was dismissed

Appeal was allowed, in circumstances.

Application for return of plaint was moved on the ground that "cheque" was not a "negotiable instrument" and Court had no jurisdiction to adjudicate upon the matter

Trial Court dismissed the said application holding that Court had jurisdiction to adjudicate upon the matter

Validity

"Cheque" would fall within the definition of "negotiable instrument"

Plaintiff could file suit under O. XXXVII, R. 2, C.P.C. on the basis of cheque

Trial Court had rightly dismissed the application filed by the defendant

No illegality, irregularity or jurisdictional defect was pointed out in the impugned order passed by the Trial Court

Revision petition was dismissed in limine.

Application for return of plaint was moved on the ground that "cheque" was not a "negotiable instrument" and Court had no jurisdiction to adjudicate upon the matter

Trial Court dismissed the said application holding that Court had jurisdiction to adjudicate upon the matter

Validity

"Cheque" would fall within the definition of "negotiable instrument"

Plaintiff could file suit under O. XXXVII, R.2, C.P.C. on the basis of cheque

Trial Court had rightly dismissed the application filed by the defendant

No illegality, irregularity or jurisdictional defect was pointed out in the impugned order passed by the Trial Court

Revision petition was dismissed in limine.

Cheque was given status of 'negotiable instrument' which could not be engineered or fabricated as other document(s) declared or qualified as 'negotiable instrument'

Defendant had taken contradictory stance in the present case

No question of issuance of cheque book would arise without having an account opened

Nothing was on record that any FIR was lodged with regard to alleged theft of cheque

Cheque in question belonged to defendant

Defendant could not escape the consequences arising therefrom unless proved contrary which he had failed to do

Mere typographical mistake/error could not decrease the consequences which a 'drawer' had to ensure encashment/payment of amount to the 'holder'

Plea which was not taken before the Trial Court could not be looked into by the Appellate Court

Evidence of an expert was nothing more than confirmatory or explanatory of direct or circumstantial evidence

Such evidence of expert could not be given preference over confidence inspiring and worthy of credence evidence available to prove otherwise

Defendant had not produced any document in support of his claim

Cheque in question was issued by the defendant in favour of plaintiff which was dishonoured by the bank on presentation

Appeal was dismissed in circumstances.

Trial Court dismissed the suit on the ground that promissory note was inadmissible in evidence for want of proper stamp duty

Validity

Promissory note had already been admitted in evidence of plaintiff without objection on behalf of defendant

Admission of promissory note could not be called in question at any stage of suit or proceeding in circumstances

Attestation of promissory note was not mandatory

Plaintiff had also produced one marginal witness of promissory note and scribe of the same

Statement of witness would not dislodge the presumption attached to the negotiable instrument with regard to its execution

Payment of consideration for the promissory note on the date it was executed was not necessary

Even consideration paid earlier in time would be a good consideration

If defendant did not owe any amount to the plaintiff, what prompted him to issue cheque for the amount which was dishonoured

Impugned judgment and decree passed by the Trial Court were not sustainable which were set aside

Decree for recovery of amount was granted after deduction of already paid amount

Appeal was allowed in circumstances.

Statutory presumption vis-à-vis 'consideration', 'date', 'time of acceptance and transfer', 'order of endorsement', 'stamping' and 'holder in due course' of negotiable instrument is attached to a negotiable instrument but same also attracts a special rule of evidence.

Trial Court dismissed the suit holding that promissory note was insufficiently stamped and same was not admissible in evidence

Validity

Promissory note payable on demand for an amount not exceeding Rs. 250,000/- was chargeable with stamp duty of Rs. 50/- at the time of its execution

Promissory note, in the present case, was written on stamp paper of Rs. 20/- having adhesive stamp of Rs. 30/

Stamp duty of Rs. 50/- had been charged properly on the promissory note of Rs. 150,000/

Promissory note could be written on a paper having adhesive stamps or stamp paper and it was not necessary that promissory note must be affixed with adhesive stamps

Defendants having not come in the witness box, their written statement could not be considered

Nothing was in rebuttal of evidence of plaintiff

Negotiable instrument itself be treated as evidence against the defendant

Plaintiff had established his claim through documentary evidence

Impugned judgment was set aside and suit was decreed

Appeal was allowed in circumstances.

Initial presumption that negotiable instrument was made, drawn, accepted and endorsed for consideration was yet rebuttable

Onus would be on the person denying such consideration to allege and prove the same

Where execution of promissory note and its receipt had been proved by the plaintiff, the burden would shift on the defendant to prove for want of consideration

Defendant executed a pronote albeit it was blank when same was executed

Defendant had not specifically denied that he did not execute or sign the promissory note

Defendant had admitted his signature on the said pronote in circumstances

Once a presumption attached to a negotiable instrument was established and pronote was validly executed then onus would shift on the defendant to rebut the said presumption

Alleged pronote was witnessed by two witnesses who were produced in evidence by the plaintiff

Promissory note was not required to be attested by witnesses

Trial Court had committed an error while relying upon Art.17(2) of Qanun-e-Shahadat, 1984

Trial Court had placed the entire burden to prove the case on the plaintiff and had not considered the applicability of S.118 of Negotiable Instruments Act, 1881

Trial Court had not considered the presumption attached to the pronote which had been validly exhibited

Defendant was bound to produce reliable and positive evidence to rebut the presumption attached to the pronote

¬Defendant had not discharged burden which shifted upon him to establish that he had signed and thumb marked on blank paper and amount of pronote had been paid

Suit filed by the plaintiff was decreed in circumstances

Appeal was allowed.

Negotiable instrument had presumption that same was made or drawn for consideration and that every such instrument when it had been accepted, endorsed, negotiated or transferred then same was accepted, endorsed, negotiated or transferred for consideration

Every negotiable instrument bearing a date should be presumed to have been made or drawn on such date.

Plaintiff Bank filed suit for recovery of finance against defendants who in return filed petition for grant of leave to appear and defend the suit

Defendants in their petition for leave to appear and defend did not challenge any entry in statement of accounts and disputed markup only

Validity

Contents for application of leave to appear and defend the suit were self-sufficient to establish that defendants admitted fact of availing finance facilities and execution of charge documents

Only dispute raised by defendants related to charging of markup after expiry period

Dispute of markup was not a dispute in respect of which leave to defend could be granted as the same could be easily worked out

Defendants failed to point out any excessive markup charged by Bank

Markup charged by the Bank was as agreed between the parties and no markup after expiry period while statement of accounts was duly verified under the law

Defendants were estopped to challenge validity of finance facilities and charge documents in terms of S. 20 read with S. 118 of Negotiable Instruments Act, 1881

Defendants failed to comply with mandatory provisions of law without furnishing sufficient cause for non-compliance of requirements of S. 10(5) of Financial Institutions (Recovery of Finances) Ordinance, 2001

Banking Court rightly dismissed application of defendants for grant of leave to appear and defend the suit

Appeal was dismissed in circumstances.

Trial Court had not considered as to whether the plaint presented before it was filed on the basis of any "negotiable instrument"

Suit was decreed on account of failure on the part of defendant to file an application for leave of the court to appear and defend the same

Plaintiff had not produced even copy of any cheques and Trial Court did not require him to produce any evidence in support of plaint and to produce any documentary evidence in order to bring his suit within the ambit of summary suit

Trial Court was not competent to entertain and decide suit in absence of any evidence on record to show that suit was filed upon any negotiable instrument

District Judge was bound to direct his office to examine the suits filed under O. XXXVII, C.P.C. at the time of their filing as to whether same were filed upon any negotiable instrument and a separate report must be available on the file of every suit and only then further proceedings were to be taken in such suits

Impugned judgment and decree passed by the Trial Court were not sustainable in the eye of law and same were set aside

Suit was filed before the wrong forum and plaint was directed to be returned to the plaintiff for presentation of the same before court of competent jurisdiction

Appeal was accepted in circumstances.

Negotiable instrument had presumption of truth and any person who wished to dispel the same had to furnish proof/cogent evidence to the contrary.

Contention of defendants was that Banking Court at the time of passing an 'interim decree' was required to grant not only 'leave to defend the suit' but also to frame issues

Validity

Disputed amount of mark-up could conveniently be sorted out without framing of any issue and recording of any evidence

Liquidated damages could not be granted without proving the same through sufficient evidence

Negotiable instrument had presumption of truth and any person who wished to dispel it had to furnish proof/cogent evidence to the contrary

Defendants with their free will and wish had signed and executed documents for repayment of loan amount

Defendants were estopped from challenging the same

Doctrine of promissory estoppel was applicable in the case

No one could approbate and reprobate at the same time

Party claiming liquidated damages had firstly to plead and then to lead positive and sufficient evidence in proof thereof

Issues would arise out of the pleadings of the parties

Issues could only be framed when dispute could not be resolved without putting the parties to lead evidence in 'pro' and 'contra' of the same

Issues were not required to be framed as a routine which would depend upon facts and circumstances of each case

Application for leave to defend the suit was dismissed and suit was decreed against the defendants jointly and severally for outstanding amount plus cost of funds from the date of default till the date of realization

Final decree with regard to sale of mortgaged properties was also passed.

Negotiable instrument would carry presumption of its being an unconditional promise to pay the amount on demand or at fixed or determinable future time but by no imagination it could be believed that execution of a document (negotiable instrument) could be for any other purpose but to clear (pay-up) certain liability (consideration) though not needed to be referred/mentioned in such a document

Said presumption was rebuttable but once it appeared that a document qualified the definition of 'negotiable instrument' the lis would require to be dealt within the meaning of the provision of O. XXXVII, C.P.C. else the presumption would lose its purpose

If before execution of a 'negotiable instrument' the parties were under certain liabilities through some written agreement then this would not be sufficient to deprive one from resorting to course provided under O. XXXVII of the Code if it was established that earlier liabilities were settled by execution of 'negotiable instrument'

If other side had succeeded in bringing the document out of meaning of 'negotiable instrument' then proper course for the holder would be to file a 'regular suit'

Defendant was bound to prove that document (cheque) to be not a 'negotiable instrument' wherein he had failed

Impugned judgment passed by the Trial Court was not open to any exception

No illegality or irregularity had been pointed out in the impugned judgment

Appeal was dismissed in circumstances.

Promissory notes had presumption of truth.

Plaintiff filed suit for recovery of money on the basis of cheque issued by defendant which was dishonored on presentation due to insufficient balance-Trial Court decreed the suit in favour of plaintiff-Validity­ Held, there was an initial presumption under S. 118 of Negotiable Instruments Act, 1881, that a negotiable instrument was made, drawn, accepted or endorsed for consideration

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

Where execution of negotiable instrument was admitted, the burden of proof of non-payment of consideration was on the executant

Trial Court by analyzing entire evidence adduced pro and contra by the parties, rightly came to the conclusion that the plaintiff had brought his whole claim owing to the fact that execution of cheque was admitted and thus a presumption was attached

Presumption was not patently rebutted by the appellant and the findings of Trial court were valid and were affirmed

Appeal was dismissed in circumstances.

Cheque in question was issued on 25-2-2011 and was presented for payment on 11-11-2013, when it was bounced due to insufficient funds

Plea raised by accused was that FIR was registered with mala fide intention

Validity

Cheque in question was a negotiable instrument which was presented to bank after lapse of about 30 months

Cheque was required under S.84 of Negotiable Instruments Act, 1881, to be presented for payment within a reasonable time of its issue

Dishonest intention in issuing a cheque was sine qua non to attract offence under S. 489-F, P.P.C., which was yet to be established after having recourse to evidence

No date, time or place of alleged payment of Rs.8 million by complainant to petitioner was mentioned in FIR

Complainant did not file any suit against accused for recovery of disputed amount

Cheque was in possession of complainant, therefore, no recovery was pending against accused

Offence under S. 489-F, P.P.C. did not fall within the prohibitory clause of S. 497, Cr.P.C.

Plea of malice raised by accused could not be discarded outrightly

Object of pre-arrest bail was to save innocent persons from humiliation, harassment and incarceration on the basis of false implication

Pre-arrest bail was allowed in circumstances.

Negotiable instrument under S. 118 of Negotiable Instruments Act, 1881,,attaches itself statutory presumption that is to say, as to consideration, date, time of acceptance, time of transfer, order of endorsement, stamping and also as to holder of a negotiable instrument in due course

Presumption attached to negotiable instrument besides statutory in nature is also mandatory

No person can dispel such presumption without furnishing solid proofs and evidence.

Filing of ordinary suit based on negotiable instrument in no manner deprived plaintiff of the benefits of statutory presumptions attached to negotiable instrument under S.118 of Negotiable Instruments Act, 1881

All cheques and pay orders i.e. loan amount, were debited/shown in statements of accounts

Loan amount was not only acknowledged by issuing five cheques but also acknowledged the same in writing on stamp papers, which were not only signed and executed by defendants but also attested by Notary Public and Justice of Peace

Averments made in plaint, affidavit-in-ex-parte proof and documents produced by plaintiff in his deposition had gone un-rebutted/un-challenged and plaintiff had fully succeeded to establish his claim against defendants

Suit was decreed in circumstances.

Trial Court had not considered as to whether the plaint presented before it was filed on the basis of any "negotiable instrument"

Suit was decreed on account of failure on the part of defendant to file an application for leave of the court to appear and defend the same

Plaintiff had not produced even copy of any cheques and Trial Court did not require him to produce any evidence in support of plaint and to produce any documentary evidence in order to bring his suit within the ambit of summary suit

Trial Court was not competent to entertain and decide suit in absence of any evidence on record to show that suit was filed upon any negotiable instrument

District Judge was bound to direct his office to examine the suits filed under O.XXXVII, C.P.C. at the time of their filing as to whether same were filed upon any negotiable instrument and a separate report must be available on the file of every suit and only then further proceedings were to be taken in such suits

Impugned judgment and decree passed by the Trial Court were not sustainable in the eye of law and same were set aside

Suit was filed before the wrong forum and plaint was directed to be returned to the plaintiff for presentation of the same before court of competent jurisdiction

Appeal was accepted in circumstances.

Filing of ordinary suit based on negotiable instrument in no manner deprived plaintiff of the benefits of statutory presumptions attached to negotiable instrument under S. 118 of Negotiable Instruments Act, 1881

All cheques and pay orders i.e. loan amount, were debited/shown in statements of accounts

Loan amount was not only acknowledged by issuing five cheques but also acknowledged the same in writing on stamp papers, which were not only signed and executed by defendants but also attested by Notary Public and Justice of Peace

Averments made in plaint, affidavit-in-ex parte proof and documents produced by plaintiff in his deposition had gone un-rebutted/un-challenged and plaintiff had fully succeeded to establish his claim against defendants

Suit was decreed in circumstances.

Plaintiff sought recovery of money in summary proceedings on the basis of delivery order and Trial Court granted leave to defendant to appear and defend the suit

Validity

Plaintiff, if at all, might have claimed his right as prayed for in the suit, as per entitlement, in accordance with law but not by way of filing suit under O.XXXVII, R.3, C.P.C. and could proceed like ordinary suit, according to normal procedure prescribed under Civil Procedure Code, 1908

High Court in exercise of revisional jurisdiction set aside order passed by Trial Court as corum non judice

Revision was allowed in circumstances.

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.

Pro note is liable to be stamped under Article 49 of Stamp Act, 1899 and by virtue of amendment made by Punjab Finance Act, 1995, stamp of an amount of Rs.100/- is payable if amount exceeds Rs.500,000/

Provision of proviso (a) to section 35 of Stamp Act, 1899, is curative and covers situation according to which if any instrument is not stamped or insufficiently stamped would be admitted in evidence on payment of penalty

Payment of stamp duty is a matter between a citizen and the State and an adversary cannot be permitted to capitalize on a technicality which otherwise is not fatal to suit.

Without any proof to the contrary presumption attached to the negotiable instrument is that it was always for consideration.