2024 PLD 18
JUDGMENT
Muhammad Aamir Nawaz Rana, J.- The appellant had filed a suit under Order XXXVII CPC for recovery of Rs.10,000,000/- (Rupees Ten Million) which was dismissed by the trial Court vide impugned judgment dated 02/10/2021.
2. The facts arising out of pleading of the parties are; the appellant, by filing suit for recovery of Rs.10,000,000/- (Ten Million) against respondents, had alleged that on the request of the respondents, the appellant had arranged the loan of Rs.10,000,000/- (Rupees Ten Million) for them. According to appellant, Rs.4,000,000/- (Four Million) were given in cash, while the remaining Rs.6,000,000/- (Six Million) were paid to the respondents through bank account of Abdullah and Habibullah in the shape of two separate cheques amounting to Rs.3,000,000/- each (Rupees Three Million) of Askari Bank, Chaman Branch dated 10/07/2013 and 12/07/2013 respectively, and according to the appellant, as guarantee agreement was also executed on 28/06/2013. Apart from that, promissory notes of even date amounting to Rs.10,000,000/- (Rupees Ten Million) were also executed by respondents Nos. 1 and 2.
3. The record transpires that the respondents had filed leave to defend the suit, in which they had denied the contents of the suit and stated that the alleged agreement as well as promissory notes are results of forgery and fraud, the leave to defend suit was allowed by the trial Court vide order dated 31/08/2016, but subsequently the respondents did not appear, and through ex-parte judgment and decree dated 11/02/2017, the suit was ex-parte decreed in favour of the appellant which order was assailed by the respondents before this Court, and vide order dated 21/03/2019, the ex-parte judgment and decree was set aside, and matter was remanded to the trial Court for decision on merits.
4. Out of pleadings of the parties, the learned trial Court framed the following issues:
“1. Whether plaintiff has extended an amount of Rs.10 Millions as Loan to defendants?
2. Whether the documents relied upon by plaintiff has been proved in accordance with law?”
5. That thereafter parties were directed to produce evidence in support of their respective contentions. The appellant/plaintiff produced five (5) witnesses, and thereafter the appellant recorded his statement, whereas respondents recorded their statements on oath but did not produce any evidence; on conclusion of the trial, the learned trial Court, after evaluating the evidence of the parties, dismissed the suit filed by appellant through impugned judgment.
6. Learned counsel for the appellant contended that the appellant had proven the execution of promissory notes by defendants and execution of the agreement between the parties. Per learned counsel, in view of the promissory notes, the respondents were bound to repay the loan obtained by them amounting to Rs.10,000,000/- (Rupees Ten Million). Whereas, the learned counsel appearing on the behalf of respondents controverted the contentions of appellant’s counsel and submitted that promissory notes as well as agreement were results of forgery, as the respondents had never signed the same which fact has been proven from the report of Forensic Science Laboratory, as according to expert opinion, the signatures of respondents do not tally with the signatures available on promissory notes and agreement. Further submitted that there exists no business relationship between the parties and since appellant has badly failed to produce any documentary or oral evidence in support of his contentions. Per learned counsel for respondents, the story fabricated by the appellant regarding payment of cash amount to respondents through cheques has not been proved, therefore, trial Court had rightly dismissed the suit so filed by the appellant.
Arguments heard. Record perused.
7. The appellant has alleged that he is in the business of scrap which he shift from Chaman to Quetta and to other places and he has no bank account, therefore, he is using the bank accounts of Abdullah and Habibullah which they maintained in the Askari Bank Chaman. According to appellant the respondents are in the business of importing cloths, therefore, appellant have good relationship with respondents. In this back drop, the appellant on the request of respondents have paid them 4,000,000/- (Rupees Four Million) in cash while 6,000,000/- (Rupees Six Million) were paid by him through bank accounts of Abdullah and Habibullah; for the security purpose the agreement dated 28.06.2013 was executed and promissory notes on the same date was also executed by the respondents in which it was stipulated that amount received by respondents shall be detained by or before 01.08.2013.
The appellant has not produced any evidence that the alleged cheques purportedly issued by Abdullah and Habibullah and were encashed by the respondents, the appellant has also failed to bring on record any evidence which could prove that respondents are in the business of importing cloths or to that matter even appellant failed to prove that he himself is in the business of scrap as no documentary evidence in this regard was produced by the appellant.
8. The respondents have strongly denied the execution of the agreement as well as execution of alleged promissory notes, so much so, they have filed an application under Article 60 of Qanoon Shahadat, 1984 for analysis of documents from FSL, Quetta. In this regard trial Court sent alleged promissory notes along with agreement with specimen signature of respondents for FSL analysis and the opinion of expert in this regard is reproduced as under: “01- The questioned urdu signatures marked as Q-1,Q-2,and Q-5 on the disputed documents do not tally with the specimen/routine signatures supplied of Muhammad Ayub.
02- The questioned english signatures marked as Q-3,Q-4 and Q 6 on the disputed documents do not tally with the specimen/routine signatures supplied of Muhammad yousaf.” 9. The appellant has also failed to prove his resources to
establish that he had the financial position to pay Rs. 10,000,000/- (Rupees Ten Million) to respondents, the appellant has not produced any evidence to establish whether he was active tax payer or not? In absence of such evidence, the claim of appellant that he is in the business of importing scrape becomes doubtful; under Section 118 of Negotiable Instruments Act, 1881 (hereinafter “the Act, 1881”). There is an initial presumption that a negotiable instrument is made or drawn, accepted or endorsed for consideration. Although this presumption is rebuttable presumption but in the case in hand the respondents had straight away denied the execution of alleged promissory notes, therefore, in our considered view, the appellant had to discharge this initial burden that the promissory notes had been duly executed and signed by the respondents, the ibid FSL opinion creates serious doubts regarding execution of promissory notes. In “Ghulam Murtaza v. Muhammad Rafi1”; it is held that presumption under Section 118 of Negotiable Instruments Act, 1881 was not a conclusive presumption of drawing consideration of a negotiable instrument, rather it was rebuttable in nature and initial burden of proving that the negotiable instrument was executed against 1 2020 CLD 265 consideration was on the plaintiff. In this case, the appellant has taken a plea that he had given a loan of Rs. 10,000,000/- (Rupees Ten Million) to respondents. Considering the facts and circumstances of the case, the appellant has neither been able to prove payment of Rs. 10,000,000/- (Rupees Ten Million) to respondents nor could prove execution of the promissory notes. It is hard to believe that Rs. 4,000,000/ (Rupees Four Million) in cash were brought to Civil Court and were handed over to the respondents. The perusal of promissory notes divulges very important aspect; it is mentioned in the said promissory notes that payment of Rs. 10,000,000/- (Rupees Ten Million) was made to respondent namely Muhammad Ayub “in cash”; in the same manner in the second promissory note allegedly executed by Muhammad Yousuf, it is mentioned that he has received Rs. 10,000,000/- (Rupees Ten Million) “in cash” and the cheques are not mentioned in the said promissory notes, therefore, the complete edifice upon which the appellant has built his case stands crumbled. The alleged agreement dated 28.06.2013 (ExP/4-C) is not notarized in accordance with applicable rules which creates another doubt regarding its authenticity. So much so, the Oath Commissioner who according to appellant had attested promissory notes and agreement was also not produced and as mentioned above, the appellant has also failed to prove his source and capacity, therefore, the presumption contained in Section 118 of the ibid Act stands rebutted.
We have thoroughly gone through the impugned judgment and decree dated 2nd October, 2021 passed by Additional District Judge-I, Quetta but could not find any infirmity in reasoning and perversity in interpretation of relevant provisions of law, therefore, the appeal being without any merit is hereby dismissed.