Suit for recovery of amount
Suit for recovery of amount legal meaning, translation and judicial precedents.
Meaning & Judicial Interpretation: (اردو مفہوم اور قانونی تشریح)
Suit filed by respondent / plaintiff was decreed against appellant / defendant as the cheque given by him was dishonored on presentation
Contention of appellant / defendant was that the cheque issued by him was of guarantee
Validity
There are three distinct parties in a contract of guarantee: the "surety," the "principal debtor," and the "creditor"
Appellant/defendant did not qualify either as a surety or a third-party guarantor but he squarely fell within the definition of the "principal debtor"
Subject cheque, was a negotiable instrument under S. 6 of Negotiable Instruments Act, 1881 and was governed by the statutory presumptions enshrined in S. 118 of Negotiable Instruments Act, 1881
No material illegality, irregularity, misreading, or non-reading of evidence was pointed out by appellant/defendant
Trial Court rightly appreciated the evidence and correctly applied settled legal principles in decreeing the suit under O.XXXVII, C.P.C.
High Court declined to interfere in judgment and decreed passed against appellant / defendant
Appeal was dismissed, in circumstances.
The appellant filed a suit for recovery in which the respondents failed to appear and they were proceeded against ex-parte
The Trial Court recorded the appellant's ex-parte evidence and partially decreed the suit awarding only Rs. 1,13,000/- as principal, while dismissing the rest of the claim for lack of sufficient proof
The approach of Trial Court decreeing the suit to a limited extent on the basis of appellant's unrebutted testimony while simultaneously discarding the remainder of the claim appeared to be based on assumptions and selective reliance on the evidence without adhering to settled principles of appreciation of ex-parte evidence
The inconsistency in accepting certain parts of the appellant's evidence while discarding the rest, without cogent reasoning, rendered the judgment confusing and legally unsustainable and such exercise of discretion in a piecemeal manner amounted to a flawed application of judicial mind, which was not warranted under the law
Impugned decree suffered from a fundamental infirmity, as it was passed without proper consideration of the entire evidence on record
A partial decree, while permissible in certain circumstances, could not be sustained when it selectively relied on fragments of evidence while disregarding material facts and documents crucial to a just adjudication
The failure to evaluate the totality of the evidence resulted in a manifestly erroneous decision, prejudicing the rights of parties
Judicial propriety demanded that courts examine all relevant evidence in a holistic manner before arriving at a conclusive finding
Since the decree in question was rendered without such due consideration, it amounted to a miscarriage of justice
Trial Court committed a grave legal error by passing an ex-parte decree without properly considering the available evidence on record
The impugned judgment was rendered summarily, without any judicial determination of the merits of the case, as the court failed to evaluate the pleadings, the plaintiff's recorded statement, or any other material evidence
In view of powers conferred under S.107 of C.P.C., the High Court under its appellate jurisdiction was of the considered view that a remand of the case was necessary for the proper adjudication of the real subject matter in dispute
Appeal was allowed and the matter was remanded to the Trial Court to frame proper issues on the subject and then decide the lis after recording of evidence
Case remanded.
Record reflected that on notice the petitioner / defendant appeared before court, filed application for leave to defend and argued the matter through counsel and thereafter Trial Court decided the case
Unsuccessful party which appeared and contested the suit could not resort to the provision of S.12(2) of Civil Procedure Code, 1908 to impugn the decision
Allowing such application would mean to give a party an opportunity to attack/impugn the decision before the same Court
Revision petition was dismissed in limine.
Petitioner filed the application for comparison of hand-writing on the disputed cheque which was dismissed by the Trial Court
Petitioner contended that he never issued any cheque to the respondent; that he issued a blank cheque to the owner of petrol pump as guarantee in lieu of purchase of diesel for agriculture purpose; that the petitioner returned the entire amount to the owner of petrol pump but he did not return the disputed cheque to the petitioner with mala fide and ulterior motive; that writing on the disputed cheque was fake and fictitious
Petitioner had purchased fertilizers from the respondent and in lieu thereof issued the cheque in question in his favour; that the petitioner in his written statement had admitted the issuance of the said cheque in his favour; that the petitioner would frequently change his signatures; that the petitioner could not advance any cogent reason for comparison of writing on the cheque in question
Validity
Petitioner had not denied his signature on the cheque in question
Burden of proof was on him to rebut the presumption and prove that the same was without consideration or by relying upon facts and circumstances of the case and also by referring to flaws in the evidence of plaintiff
Court was empowered to compare the signature/writing/seal with others admitted/proved
However, whether or not to exercise such discretionary power would depend upon the facts/circumstances of each case
Report of a handwriting expert on its own could not be made basis to discard the direct evidence and when direct evidence was available, there was no need for expert opinion, which otherwise was nothing but confirmatory / explanatory to direct evidence
Revision petition was dismissed accordingly.
Appeal was dismissed.
Defendant assailed judgment and decree passed by trial court whereby plaintiff's suit under O.XXXVII, R.2, C.P.C., for recovery of amount mentioned in the disputed cheques was decreed
Validity
Plaintiff had successfully proved that the cheques were issued by the defendant
Cheques and dishonour slips were produced by the representative of the concerned Bank
Plaintiff had simply claimed that the cheques were issued by defendant which were dishonoured and that he was entitled for recovery of the amount mentioned in the cheques
Presumption was attached to negotiable instrument and the burden was on the defendant to prove the contrary
Defendant had claimed that he had issued the cheques to another person having similar name as that of plaintiff and that said person being relative of the plaintiff had handed over the cheques to the plaintiff
Defendant had not filed an application to the concerned Bank for cancellation of the cheques
Plaintiff had produced the said person who had denied the suggestion of defendant that cheques were issued in his favour
Mere denial of the defendant was not sufficient
Judgment of Trial Court was not open to any exception
Appeal was dismissed.
Cheque falls within the definition of negotiable instrument whereupon the plaintiff can file suit under O.XXXVII, R.2 of C.P.C.
Plaintiff filed suit for recovery of certain amount claiming therein that the defendant had obtained a loan from him and for re-payment of the loan he had issued a cheque which was dishonoured on presentation
Trial court decreed the suit
Validity
Defendant had admitted in his deposition that he had handed over two cheques to the plaintiff, therefore, in view of such categorical admission regarding issuance of cheques to the plaintiff the burden was upon the defendant to prove that the subject cheque issued by him was not for re-payment of loan
Defendant had not stated a single word as to why he had issued two cheques
Acquittal of defendant in the criminal case on the ground of want of material ingredient of "dishonesty" in issuing the cheque did not relieve the defendant of his liability to pay the amount shown in the subject cheque
Impugned judgment and decree passed by trial court did not suffer from any illegality mis-reading or non-reading of evidence
Appeal was dismissed.
Plaintiff filed suit claiming that it was manufacturer of motorcycles, their parts and accessories, which were sold through the authorized dealers appointed in that behalf by the plaintiff; that the products were supplied by the plaintiff to its authorized dealers on credit, who after selling the same paid the sale proceeds thereof to the plaintiff after deducting their commission at the agreed rate; that the defendants being its authorized dealers; did not pay the sale proceeds of the motorcycles to the plaintiff, as such they were liable to pay the same
Validity
Defendants were the authorized dealers of the plaintiff and were bound by the terms and conditions of the Dealership Agreement
Defendants had committed default in making payments of their outstanding liabilities towards the plaintiff
Motorcycles were delivered by the plaintiff and the defendants had confirmed their delivery in running and perfect condition
Plaintiff had specifically denied the allegations made by the defendants through a letter and had reiterated its claim of the outstanding amount against the defendants
Defendants had not responded to the said letter and in absence of any denial of the contents of the said letter by the defendants, the presumption was that they had admitted the contents thereof
No evidence was produced by the defendants in rebuttal of the evidence produced by the plaintiff
Entire evidence produced by the plaintiff had remained unchallenged and un-rebutted
Suit was decreed as prayed for.
Plaintiff filed suit for recovery of certain amount claiming therein that the defendant purchased fabric worth millions of rupees on credit but had failed to pay for the same
Validity
Defendant in a letter had categorically admitted that it had not been able to pay the outstanding amount to the plaintiff due to decline in its business and had promised to resume the payment of outstanding dues till the full and final satisfaction of its entire liability
Defendant, in another letter addressed to the plaintiff, had disputed the amount claimed by the plaintiff but had promised to pay the outstanding dues
Defendant's counsel in response to the plaintiff's legal notice had stated that the total outstanding amount due against the plaintiff was much less than the amount mentioned in the legal notice
No specific amount was mentioned in the said reply which was outstanding according to the defendant
Such claim amounted to an admission of liability on the part of the defendant
Evidence produced by the plaintiff had remained unchallenged and un-rebutted
Plaintiff had successfully discharged its burden and has succeeded in proving its claim
Suit was decreed as prayed for.
Perusal of the agreement revealed that two attesting witnesses had signed on the document as marginal witnesses but the appellant had produced only one attesting/marginal witness of the document and failed to produce the scribe of the agreement in the trial court as required under Arts. 17 & 79 of the Qanun-e-Shahadat, 1984
Document relating to financial or future obligation was required to be attested by two male witnesses or one male and two female witnesses and the same had to be proved accordingly
Agreement in question could not be considered/taken as proved nor could it be used in evidence as it was not proved in accordance with the requirement of Art. 79 of Qanun-e-Shahadat, 1984
Appellant had failed to prove the execution of the agreement
Disputed document was executed on 12.1.2004 and counter claim/suit was filed by the appellant on 19.8.2008
Case of appellant was governed by Art. 57 of the Limitation Act, 1908, which provided a period of three years to file a suit for recovery of amount, which period was to be reckoned from the date when the money was lent
Counterclaim of the appellant was time-barred
Judgment and decree passed by the Trial Court was declared by the Chief Court to be correct and in accordance with law
Appeal was dismissed.
Defendant impugned rejection of application for leave to defend by Banking Court, on the ground that documents pertaining to alleged facility obtained by defendant were forged and he had availed no such facility
Validity
Defendant in its application for leave to defend suit had not disclosed any plausible defence and only stated stereotypical and vague objections
Defendant did not take plea of alleged forged documents in his application for leave to defend, and the same was also not urged during arguments before Banking Court, and therefore, said plea could not be allowed at the appellate stage
No illegality existed in the impugned order
Appeal was dismissed, in circumstances.
Before filing appeal, appellant never complained before the executing court regarding the alleged coercion, pressure or undue force against the respondent despite the fact that he was duly represented by his counsel
Appellant had concealed the material facts regarding his active participation before the executing court
Appeal, being bereft of merits, was dismissed.
Defendant had denied relationship of landlord and tenant and had challenged maintainability of the suit and suit being time barred
Maintainability of suit for recovery of arrears of rent
Scope
Appellant/tenant contended that exorbitant arrears of rent without any documentary proof of the rate of rent was illegally claimed by the respondent/plaintiff which was not maintainable and also time barred
Respondent/landlord contended that in previous eviction proceedings against appellant/tenant, the rate of rent was determined by Rent Controller which order was .upheld up to the Supreme Court and that the suit was not time barred as recovery of arrears of rent was governed by Art. 110 of Limitation Act, 1908-Validity
Perusal of evidence indicated that no relevant provision of law had been pointed out by the appellant to indicate that under which law, the filing of suit for recovery of arrears was barred
Rent Controller while passing eviction order had passed comprehensive judgment and decree which was upheld up to the Supreme Court, therefore, the suit filed by the respondent was maintainable
Appellant had also challenged the existence of relationship of landlord and tenant between the parties and rate of rent, which was decided by the Rent Controller so the relationship between the parties existed and the rate of rent had also been determined by the Rent Controller
Findings of Rent Controller on the question of relationship/title, could not be challenged in civil suit
Rent Controller in his order had specifically observed that "the applicants might approach civil court for arrears of rent at the rate of Rs. 16000/- per month from Jane 2007"
Such findings of the Rent Controller were upheld by the High Court and Supreme Court, therefore, the evidence produced in the present case by the respondent with regard to rate of Rs. 16000/- per month and arrears of rent from June 207 was based on proper appreciation of evidence
Objection raised by appellant for limitation was not tenable as Art. 110 of Limitation Act, 1908 was relevant provision with regard to limitation for arrears of rent, which provided period of three years when the arrears became due
Suit for recovery filed by respondent was within time, though, the respondent had claimed recovery of Rs. 1,475,750/-, but the trial court after proper appreciation of evidence decreed the suit only to the extent of arrears of rent total 87 months at the rate of Rs. 16,000/- per month
Findings of the trial court neither reflected misreading or non-reading of evidence, hence warranted no interference by the High Court-Regular first appeal was dismissed accordingly.
Transaction of purchase of land was executed at Rawalpindi and Trial Court at Astore (Gilgit-Baltistan) decreed the suit filed by the plaintiff
Question of territorial jurisdiction was involved
Chief Court in appeal held that judgment of Trial Court Astore (Gilgit-Baltistan) was without jurisdiction and lawful authority
Validity
Defendant had suffered irreparable loss because of uncalled for prolonged litigation by the plaintiffs and the judgment passed by the Trial/Civil Court was without jurisdiction
Supreme Appellate Court observed that administration of justice demanded that defendants be compensated; plaintiff was directed to pay cost of Rs.50,000 to the defendants within 15 days
No infirmity/illegality could be pointed out in the impugned judgment passed by the Chief Court in First Appeal
Petition for leave to appeal was converted into appeal by the Supreme Appellate Court and dismissed
Judgment passed by the Chief Court, being well founded and well reasoned, was upheld, whereas judgment/decree passed by the Trial Court, being without jurisdiction, was set aside, in circumstances
Defendants, however, could claim damages against the plaintiff in accordance with law.
Federal Investigation Agency and National Accountability Bureau authorities also initiated inquiries against accused for his involvement in obtaining loan from Bank fraudulently and National Accountability Bureau issued notice under S.19 of National Accountability Ordinance, 1999
Accused filed writ petition before the Chief Court praying therein to restrain the NAB authorities from inquiry/investigation
Counsel for accused contended that a civil suit for recovery filed by the Bank on the subject would preclude the NAB authorities to entertain the complaint and to investigate or conduct inquiry against accused
Validity
National Accountability Bureau could not be restrained from the inquiry/investigation for the allegations levelled against accused
Accused had committed offences under S.9 of the National Accountability Ordinance, 1999, which could only be determined after conducting inquiry/investigation
Notice had been issued under S.9 of National Accountability Ordinance, 1999, whereby any person involved could be investigated for the offence mentioned therein
Issuance of notice, even if found to be not within its purpose and object, a wrongly issued notice would not, under any case, justify quashing the route (an investigation, initiated under S.18(c) of National Accountability Ordinance, 1999)
When an offence was committed, the effect thereof would start, but a procedural error, irregularity and even illegality by Investigating Officer, could well be judged by the competent court towards the effect and consequences
NAB authorities, could not be precluded to issue call-up notices, or restrain to conduct an inquiry/investigation under National Accountability Ordinance, 1999
NAB authorities were lawfully authorized to conduct inquiry/ investigation and interference therein would seriously prejudice to the prosecution towards its right in probing into an investigation/ inquiry of the offence
Impugned judgment being well reasoned and well founded, no interference was warranted
Impugned judgment of Chief Court was maintained
Petition for leave to appeal was converted into appeal by the Supreme Appellate Court and dismissed.
Contention of plaintiff Electricity Distribution Company/ WAPDA was that it had a limitation of 60 years to file a suit in view of provisions of Art. 149 of Limitation Act, 1908
Validity
Per S.79, C.P.C., WAPDA or a Distribution Company could not claim its status to be that of "Government"
Although Distribution Company's/ WAPDA's affairs to some extent were controlled by government but for all practical purposes, it was an independent entity and authorized to carry out business of utilization of water and power resources of country and to generate electricity and that WAPDA or any Distribution Company, like plaintiff was not performing any of sovereign functions of the State, so as to be declared as a body corporate performing functions with affairs of Federation
In the present case, suit was filed in the name of plaintiff company through its Chief Executive but neither any resolution of company had been pleaded in or annexed with plaint authorizing any particular person to represent the company, nor any power was shown to have been extended in favour of Chief Executive of company to file or verify the plaint on its behalf
Lis could not be initiated on behalf of company which was a juristic person, without having due authority either in terms of Articles of Association or by resolution of the Board of Directors which in reported matter, were conspicuously missing, and when litigant had not even appended any document to establish that Chief Executive of company who even in reported matter put his signatures to memo of appeal was not having any authority to do so, hence, appeal would be termed as not maintainable and will be dismissed
Article 149 of Limitation Act, 1908 provided a period of limitation of sixty years for a suit by or on behalf of Federal or Provincial Government, but when such fact was established that plaintiff could, in no way, attain the status of either Federal or Provincial Government, provisions of Article 149 of Limitation Act, 1908 were of no help to plaintiff
Revision was allowed, accordingly.
Plaintiff filed suit for recovery of amount on basis of dishonoured cheque and FIR was also got lodged against defendant for the same
Defendant, while being in jail, appeared in suit through his counsel
Said counsel filed application for withdrawal of his power of attorney, on which Trial Court directed him to furnish certificate in writing to the effect that he had duly intimated defendant about said application for withdrawal
No one, later on, appeared on behalf of defendant, and Trial Court finally decreed the suit ex parte
Defendant filed application under O. XXXVII, R. 4, C.P.C. seeking setting aside of ex parte judgment and decree, which Trial Court dismissed
Validity
Trial Court had already allowed application moved by defendant for his exemption from appearance
Defendant need not to appear in person on each and every date, especially, when he had been represented by his duly constituted attorney or advocate
However, as defendant was confined in jail and his counsel having disassociated himself from proceedings and sought to withdraw his power of attorney, Trial Court was supposed to go to an extra mile and proceed cautiously
Advocate of defendant had not furnished certificate in writing to confirm that he had duly informed defendant about his intention not to represent him in future
No justification existed to initiate ex parte proceedings
Trial Court, having already heard arguments on application for leave to defend, had resorted to ex parte proceedings, which was glaring material irregularity
Trial Court, instead of retracing its steps, had persisted in its illegal orders by dismissing application filed by defendant under O. XXXVII, R. 4, C.P.C.
Defendant had given adequate reasons for his absence in said application
Plaintiff had managed first to commit defendant to prison by lodging FIR under S.489-F, P.P.C., and then maneouvered impugned ex parte judgment and decree
Impugned order was not speaking order, as no valid and cogent reasons had been given for the same
Defendant's application, in circumstances, deserved to be allowed
Trial Court had committed material irregularity in trial of suit, which had vitiated its proceedings, warranting interference under S.115, C.P.C.
Ex parte proceedings being without jurisdiction and any lawful basis, High Court, set aside impugned order of dismissal, remanded case to Trial Court for decision afresh taking up proceedings from date of application filed by defendant's advocate for withdrawal of his power of attorney
Revision petition was allowed in circumstances.
Suit for recovery of amount filed by plaintiff/respondent, having been decreed ex parte; plaintiff, filed execution proceedings in the Executing Court
Decree was satisfied through payment of the decretal amount by the defendants/appellants
Government of Pakistan, having not been made party as defendant in the suit, Government of Pakistan through Secretary Defence, assailed ex parte decree, on the plea of fraud, mis-representation and want of jurisdiction; and ex parte decree, was set aside by the Chief Court
By setting aside ex parte decree, Chief Court had paved the way to the judgment-debtors entitling them to invoke the provisions of S.144, C.P.C.
Judgment-debtors filed application under S.144, C.P.C., for restitution/remission of decreetal amount with compound interest
Trial Court dismissed said application
Validity
Defendants who were parties in the suit paid the decretal amount
Trial Court, though had noticed defect in the application, holding that same had not been filed by proper party, but despite having powers to rectify the defect by including the missing party in the application, did not include such party, rather rejected the application filed under S.144, C.P.C., resulting in miscarriage of justice
Provisions of S.144, C.P.C., were enforced, only by filing an application, provided the applicant fulfilled the conditions vide which it was mandatory that the restitution must be in respect of the decree which had been varied and reversed; that the party applying for restitution, must be entitled to the benefit under the decree reversed; and the person who had applied for restitution, was party in the suit before the Trial Court, which had passed the decree
One of the appellants who was party as defendant in the suit; and had paid the decretal amount, because of the execution proceedings, had rightly filed application for restitution
Trial Court, was required to determine the compound interest as claimed by the appellants/ judgment-debtors
Contention of respondent/decree-holder that matter be kept pending till adjudication of main suit between the parties, was repelled, because in view of ex parte decree, appellants, had been affected by paying the decretal amount, which had been reversed
Judgment-debtors, were entitled to be placed in same position as they were prior to the decree, which had been varied
Basic principle underlying right of restitution, was that a wrong done to a party by an act of court, should be rectified
Plaintiff, if would succeed in his suit pending sub judice, he would be remedied by way of payment in that suit through execution proceedings
Impugned order of the Trial Court, was set aside, and application filed under S.144, C.P.C., was remanded to the same court for adjudication on merits, in circumstances.
Maintainability of suit filed on behalf of Federation of Pakistan through a counsel, was objected to by the defendant contending that suit filed without power of attorney, and without any legal sanction/permission, was illegal and was liable to dismissal on that score
Validity
Suit was filed by the counsel in the light of his appointment under law through power-of-attorney of Government of Pakistan Justice Division; and plaint was signed by the counsel
Suit, in circumstances, was competently filed
Record had revealed that matter of jurisdiction which was decided by High Court, had attained finality
Plaintiff in support of his version produced two witnesses
Defendant also got recorded his statement and documentary evidence
Case of plaintiff, came within the purview of admitted facts; and facts admitted need not to be proved
Trial Court reached the correct conclusion, which warranted no interference, by High Court; in circumstances.
Defendant, who was appointed as a Clearing Agent of the plaintiff vide agreement, was authorized to clear the refund of the octroi deposit on behalf of the plaintiff
Defendant received the suit amount from Municipal Corporation, which was to be handed over to the plaintiff, but he failed to do so
Defendant admitted his liability to pay the suit amount and issued cross-cheques in the suit amount but same were dishonoured when presented
Liability to pay suit amount stood admitted and so was the case with the promise to pay the same and issuance of cheques
Defendant, however sought stay of suit on the ground that there being an arbitration clause in the admitted agreement and since a prayer had been made by the defendant in the application for leave to appear and defend the suit for stay of proceedings in the suit, Trial Court ought to have stayed the proceedings and should not have proceeded with the suit
Trial Court dismissed said application and decreed the suit
Validity
Major stress was on the stay of suit under S.34 of Arbitration Act, 1940
Liability to pay the suit amount stood admitted and so was the case with the promise to pay the same and issuance of cheques
Where a suit had been filed under O.XXXVII, C.P.C. and if an application was filed by the defendant under S. 34 of Arbitration Act, 1940 then it had to be decided only with reference to contents of the plaint and not with reference to the contents of the application under S.34 of Arbitration Act, 1940
No case for stay of proceedings having been made out in terms of S.34 of Arbitration Act, 1940, appeal was dismissed with costs throughout.
"Suit for recovery of amount", Pakistan Law Portal, available at: https://paklawportal.com/words-terms-maxims/124953010
Precedents & Case Laws citing "Suit for recovery of amount"
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