IN THE HIGH COURT OF SINDH AT KARACHI
Suit No. 1284 of 2008.
Mr. Justice Irfan Saadat Khan.
Plaintiff, Sikandar Ali, through Mr. S. Abid Hussain Shirazi, advocate.
Nemo for the defendant.
Date of hearing: 12-8-2010.
IRFAN SAADAT KHAN, J:– The plaintiff has filed this suit against the defendant under Order 37, Rule 1 & 2 CPC, for recovery of Rs.90,00,000/-, with the following prayer:-
1) Direct the defendant to pay a sum of Rupees 9,000,000/- (Rupees Nine Million) to the plaintiff.
2) Grant the interest two percent above the prevailing bank interest rate from the date of filing of the suit till the realization of full amount.
3) Any other relief as this Hon'ble Court may deem fit and proper in the matter.
4) Cost of the suit.
Brief facts of the case are that the plaintiff entered into an agreement for the purchase of immoveable property being Naclass No.30/25, measuring 25 acres, situated at Rasool Bux Goth, Opposite New Lyari Town, Northern Bypass, Karachi from the defendant against a sale consideration of Rs.56,25,000/- as per Sale Agreement dated 05.10.2006. It is stated that according to the terms and conditions of the said Sale Agreement it was required that defendant shall obtain NOC from Malir Development Authority and Goth Abad Scheme, Section Extension Order from the Revenue Department within two months and shall hand over all the original title deeds documents to the plaintiff and in case the defendant failed to fulfill the terms and conditions of the agreement, he was required to pay double of the amount. It is claimed by the plaintiff that he has paid to the defendant Rs.50,60,000/-. As the defendant could not comply with the terms and conditions of the said Sale Agreement and agreed to refund the amount paid by the plaintiff amounting to Rs.50,60,000/- vide an agreement dated 28.04.2007 alongwith compensation making a total amount of Rs.90,00,000/- The defendant issued four post dated cheques for a total amount of Rs.90,00,000/- as under:
1) Cheque No.0991555, dated 28.10.2007 for Rs.20,00,000/-;
2) Cheque No.0991556, dated 25.01.2008 for Rs.15,00,000/-;
3) Cheque No.0991557, dated 25.03.2008 for Rs.5,00,000/- and
4) Cheque No.0991554, dated 25.02.2008 for Rs.50,00,000/-,
All the above cheques were drawn on Standard Chartered Bank, Main Branch, Karachi but the same on presentation were dishonoured by the Bank with the remarks "Refer to drawer". It is stated that several times the plaintiff approached the defendant for payment but to no avail, therefore, lastly the plaintiff served the defendant with a legal notice dated 19.03.2008. On failure of the defendant to make payment the plaintiff filed the present suit under Order XXXVII, rule 1, CPC with the above prayer.
Notices were issued to the defendant who was served vide Additional Registrar’s diary dated 21.11.2008. He also filed an application for leave to defend. On 6.4.2009, although counsel for the defendant was not present but the leave to defend application was granted subject to deposit of surety in the sum of Rs.9,000,000/- being the amount claimed in this suit, within one month. On 12.6.2009 counsel for the defendant filed an application under Order 37, Rule 3(1), CPC for review of the order dated 6.4.2009. However, this application was dismissed for non-prosecution vide order 5.10.2009. Since the leave to defend application was also granted subject to furnishing of surety within one month, and the defendant failed to comply with the same, therefore, leave to defend application shall be treated as dismissed.
On 12.8.2010, plaintiff, Sikandar Ali, who has filed his affidavit-in-evidence on 23.11.2009, appeared in Court and produced the original documents which were seen and returned.
The defendant, who was served and filed a leave to defend application, was granted conditional leave. He failed to comply with the conditional leave order and also failed to get the same set aside though he filed an application under Order 37, rule 3(1), CPC but the same was not pursued vigilantly and was allowed to be dismissed for non-prosecution. Even perusal of the affidavit filed in support of the leave to defend application reveals that though the defendant denies his signatures on the agreement dated 5.10.2006 but do not deny the issuance of the cheques, which is of primal importance in this case as this suit is based on negotiable instruments i.e. the cheques issued by the defendant. The defendants having chosen to remain absent have made themselves liable to a decree under Order 37 Rule 2 CPC and the allegation made in the plaint shall be deemed to be admitted and the plaintiff entitled to the decree.
The plaint is on oath and the affidavit-in-evidence filed by the plaintiff is also on oath. There is nothing in rebuttal from the defendant’s side to the same. Since there is no opposition to the suit on merits, I decree the suit in favour of the plaintiff as prayed.
Dated: _____ August, 2010
IN THE HIGH COURT OF SINDH AT KARACHI
Suit No.1284 of 2008.
DEPSOTION OF WITNESS PW-1
I hereby state on oath as under:
My name is: Sikandar Ali,
Father’s Name: Said Umar,
Age 55 years
Resident of : B/47, Block C, Metroville Site-I, Karachi.
Examination-in-Chief to Mr. S. Abid Hussain Shirazi, Advocate for the Plaintiff:
I see my affidavit-in-evidence. It bears my signatures. It bears true fact. I produce the same as exhibit P-5/1. I also produce the following original documents:
1. Original Agreement to Sale dated 5.10.2006 between the plaintiff and the defendant as Ex.P-5/2,
2. Original Agreement dated 28.4.2007 between the plaintiff and the defendant as Exh. P-5/3,
3. Original Cheque dated 28.10.2007 in the sum of Rs.2,000,000/- (Rs. Two Million) issued by the defendant in favour of the plaintiff with Cheque Return Memo as Exh. 5/4 and 5/4-1,
4. Original Cheque No.991556 for Rs.1500,000/- with Cheque Return Memo dated 21.2.2008 as Exh.P-5/5 and 5/5-1.
5. Copy of Cheque No.991557 dated 25.3.2008 for Rs.5,000,000/- with Cheque Return Memo dated 7.4.2008 as Exh. P-5/6 and 5/6-1,
6. Original Cheque No.991554 dated 25.2.2008 in the sum of Rs.5,000,000/- with Cheque Return Memo dated 9.4.2008 as Exh.P-5/7 and 5/7-1,
7. Legal Notice dated 19.3.2008 issued by counsel for the plaintiff to the defendant alongwith Post Office receipt as Exh. P-5/8 and P-5/9,
:- 2 -:
8. FIR No.78/08 lodged at Pak Colony PS as Exh.P-5/10, and
9. FIR No.354/08 lodged at Pak Colony PS as Exh. P-5/11.
R. O. & A. C
Karachi, the 12 August, 2010.