Date of Judgment . . 0 2. 2 0 0 6 .
Plaintiff: Feroz Ahmed Khan, through Mr. Mohammad Amin Lakhani, Advocate
Defendants
Nos.1 to 4 : Fasihullah Shaikh and others
through Mr. B. M. Bangash, Advocate.
MUNIB AHMED KHAN, J. In the instant Suit, the plaintiff has claimed a sum of Rs.30,00,00/- alongwith damages of Rs.10,00,000/- from the Defendants with profit @ 20% as well as submission of accounts. According to plaintiff the Defendants are sisters and brothers and requested plaintiff to give them friendly loan of Rs.30,00,000/-, as according to them, Defendant No.4, Hameedullah shaikh, was working in Saudi Arabia and he wanted that amount, for purchasing Machinery to be installed at Dammam by the end of December 1997 and production to start from January 1988. As the cost of said machinery was about Rs.40,00,000/- to Rs.50,00,000/- hence Rs.30,00,000/- were requested from out source. The plaintiff agreed to give the loan as Amanat, which was to be returned in terms of the Memorandum of Understanding dated 10th November 1997, executed between the plaintiff and Defendants. The said Memorandum of Understanding was signed by Defendants Nos.1 and 2, as executing party while Defendant No.3 signed as witness. As according to plaintiff, the Defendant No.2 Fayazullah was also representing Defendant No.4, Hameedullah Shaikh, therefore, he also signed in his place. The Defendants failed to return the amount in terms of the Memorandum and on persuasion of the plaintiff another Agreement dated 01.11.1999 was executed between the plaintiff and Defendant No.1. By the said Agreement, the Defendant No.1, Fashiullah undertook to start returning the loan by mid of 2000, in installment of maximum amount and entire loan was to be cleared within 2001 or earlier. By this Agreement, new terms and conditions were agreed and Defendant No.1 took upon himself to return the loan amount. The terms and conditions of previous Agreement of 1997 were no more binding and entire amount of Rs.30,00,000 was to be paid as stated above. According to plaintiff, the Defendant No.1 failed to pay, therefore, instant Suit has been filed.
Defendants Nos. 1 and 4 have filed joint written Statement, while Defendants Nos. 2 and 3 have filed separate joint written Statement. Defendants Nos. 2 and 3 have taken plea that they have signed the Agreement dated 10.11.1997 as a witness only and they have wrongly been impleaded as Defendants. According to them, they have no knowledge about the actual arrangement between the plaintiff and Defendants Nos. 1 and 4. They have also explained that Defendant No.4 is in Saudi Arabia, with whom the plaintiff has invested the amount. Defendants Nos. 1 and 4 have taken same plea as taken by Defendants Nos. 2 and 3 but have further added that the plaintiff gave a loan of Rs.30,00,000 for its investment in the business of a Saudi National, namely, Fathi Amin Talib and Defendant No.1 was not at Karachi at the time of Agreement. The Defendants have submitted that at the desire of the plaintiff, amount of loan was taken for investment, Defendant No.4, at that time, was establishing a Rope Factory in Saudi Arabia. He was a manager of Saudi owner and the investment was with Saudi owner Fathi Amin Talib. In this respect, the plaintiff wrote letters to Saudi National. The plaintiff was invited to Saudi Arabia and visa was arranged by Saudi National, in whose factory, being run in Saudi Arabia, amount was invested by the plaintiff. They have further submitted that Memorandum of Understanding dated 10.11.1997 was only signed by Defendant No.1 at the request of the plaintiff to enable him to become partner through Defendant No.4, in the factory of Saudi National. It is further stated that visas were arranged for the visit of the plaintiff but he did not avail and since the plaintiff invested the amount in the project of Saudi National at his own, therefore, the Defendants are not liable to pay any amount. He has further submitted that on the Agreement dated 10.11.1997, Defendant No.2, due to mistake, signed at the place of Defendant No.4, otherwise, Defendant No.4 was neither in Pakistan nor he gave instruction nor the Agreement incorporates actual transaction. These Defendants have denied execution of Agreement dated 01.11.1999 and have stated that the plaintiff had obtained the signature of Defendant No.1 on the said Agreement under coercion and without any opportunity of its reading. On the basis of the above pleadings, following issues were settled by order dated 01.12.2003.
1. Whether the plaintiff advanced as friendly loan in the sum of Rs.30,00,000/- or Amanat to Defendant No.1 to be utilized by Defendant No.4?
2. Whether the Defendant No.1 signed the Memorandum under the authority of Defendant No.4?
3. Whether the plaintiff has any cause of action against the Defendants?
4. What should the decree be?
The plaintiff examined himself while Defendant No.1 examined himself on behalf of all the Defendants. The plaintiff in his evidence has reiterated contents of the Plaint and have filed original Memorandum of Understanding dated 10.11.1997 as Ex.6, Agreement dated 01.11.1999 as Ex.7, three payment receipts of Rs.10,00,000/- each to Defendant No.1 as Ex.8, Ex.9 and Ex.10. The Defendant No.1 in his evidence has reiterated the contents of written Statement and have filed original letter dated 25.09.1997 as Ex.D-1, and letter dated 14.10.1997 as Ex.D-2.
During the course of evidence, both the parties submitted photocopies of some documents, which were objected to, by Learned counsel of other side and although they could not be exhibited but were taken on record.
Mr. Amin Lakhani, learned counsel for the plaintiff has argued that the plaintiff has paid Rs.30,00,000/- as a loan to all the Defendants, which is evident from the Memorandum of Understanding dated 10.11.1997, which contains signatures of all the four Defendants. As Defendant No.2 has signed on behalf of Defendant No.4 and from the bare look, it can be ascertained that Defendant No.2 has signed as witness, by writing his name and address, while on the second place, he deleted the name of Defendant No.4 and after writing his name he has signed. The amount of Rs.30,00,000/- has been paid through cheques / pay orders which has not been denied and thereafter an Agreement dated 01.01.1999 is evident to all the past factual position and through this Agreement, the Defendant No.1 has taken upon himself to return the amount upto 2001 and on his failure, suit has been filed. He has further submitted that only excuse of Defendants to the latest Agreement dated 01.11.1999, Ex.7, is that the plaintiff got it signed through coercion but there is no evidence in this respect nor the Defendant in his affidavit-in-evidence has stated a single word on the alleged coercion, allegedly applied by the plaintiff and secondly past factual position and execution of Memorandum of Understanding and issuance of receipt also corroborates the Agreement dated 01.11.1999. He goes on saying, that Defendants have taken wrong plea, as plaintiff never met or contacted with Saudi National for the purpose of investment, as he paid the amount to the Defendants only and the letter, which was written to Saudi National, was towards query in respect to the production of the factory as the plaintiff was interested to import that product and to export it to some African Cities.
On the other hand, Mr. B. M. Bangash, Learned counsel representing all the four Defendants has argued that plaintiff has not properly placed his case on the basis of Memorandum of Understanding as according to that document there was an investment from plaintiff with the Saudi National, which is being established from the fact that Saudi National arranged visa 2 / 3 times but the plaintiff did not avail and secondly, the plaintiff himself entered into correspondence with Saudi National, which shows that the investment was directly with the Saudi National and Defendants cannot be sued for its recovery. Mr. B. M. Bangash has emphasized on the terms of Memorandum of Understanding of 1997 by asserting that there are explicit terms and conditions in it and money has been paid towards investment and through that investment machinery was purchased from Pakistan and sent to Saudi Arabia. He has argued that there is no allegation regarding violation of terms and conditions. He has further submitted that the documents, specifically Agreement dated 01.11.1999 is not properly attested in terms of Articles 17 and 88 of Qanun-e-Shahadat nor any attesting witness has been examined, therefore, Agreement dated 01.11.1997 cannot be taken into consideration and even otherwise, it has been signed by Defendant No.1, under coercion. Mr. B. M. Bangash has relied upon AIR 1946 Sindh 117, AIR 1956 MD 25, PLD 1983 S.C (AJK) 63. Both the AIR’s are on the point that in the matter of money transaction, suit to be filed properly on the basis of documents, while in P.L.D. 1983 SC (AJK) 63, is in respect to the conditional sale as well as on the point that case was not properly set up in Court. He has also relied upon the meaning of investment and loan, as given in the Black’s Law Dictionary.
I have gone through the case papers and have come to note that Defendants have not denied signing of Memorandum of Understanding (Ex-6) and three receipts which shows that plaintiff paid Rs.30,00,000 to the Defendants. From the Memorandum of Understanding it appears that the same has been signed with the consensus of all the four Defendants as the Defendant No.4 has not disputed the said Agreement in his written Statement. The document shows that the amount was given by the plaintiff and the plaintiff was entitled to receive it back. All the three receipts Ex. 8 to Ex.10 undisputedly establish that Rs.30,00,000/- was given to the Defendant No.1, who acknowledged the signing them. This fact shows that the Defendant No.1 was the main person behind the deal, as he is also main undisputed executant of the Memorandum of Understanding, therefore, feeling the liability the Defendant No1 has signed the Agreement dated 01.11.1999, which is on the basis of previous Memorandum of Understanding as well as three receipts of Rs.30,00,000/- as any amount has not been mentioned in this Agreement Ex.7.
In the cross-examination the plaintiff examined stable and no evidence could be extracted to disprove plaintiff’s version. Although, certain questions were asked in the cross-examination from plaintiff in this respect but he has replied in the following words:
“It is incorrect that signature of this Agreement Ex.7 were obtained by force”.
It is also evident that Defendants have not produced any evidence regarding force / coercion, as stated in the written Statement nor have they stated any single word in their affidavit-in-evidence. In the cross-examination, the Defendants’ witness has admitted in following words:
“It is correct that I have not lodged any report / Complaint in Police Station or before any authority that the plaintiff getting execution of Agreement dated 01.11.1999 by force. It is correct that I have not filed any suit for cancellation of M O U and Agreement Ex.6 and 7”.
He has further admitted in his cross-examination that:
“Plaintiff and Saudi National Fathi Amin Talib has not executed any Partnership Deed regarding the factory. ……. ……. that amount of Rs.30,00,000/- was received from plaintiff for business purpose under Memorandum of Understanding and money are to be paid on that basis. ……. ……. that he had given a Statement of Account of business to plaintiff in the year 1998 – 99 in Karachi”.
From the above factual position coming on record, it is evident that the Agreement dated 01.11.1999 is an out come of Memorandum of Understanding dated 10.11.1997 and none of the Defendants have denied this Memorandum of Understanding or acknowledgement of amount but they have left it to the Defendant No.1, who was the main person, dealing the affairs and who in 1999 undertook upon himself to return the amount by Agreement dated 01.11.1999 Ex.7 but has tried to override it by saying that it was signed under coercion. Defendant No.1 has filed two exhibits, which are letters dated 25.09.1997 and 14.10.1997 as Ex.D-1 and Ex.D-2. These two letters were written to Al-Khair Polly Rope Factory and according to Defendant No.1 itself, the plaintiff through these letters contacted Fathi Amin Talib directly. It is very strange if these letters were written to Saudi National or to his factory, then, how these original letters have come in possession of Defendants. It means that Defendants were managing all the affairs and just to dodge the plaintiff for his amount they have taken and arranged false factual position. The authorities cited by Mr. B. M. Bangash are not relevant to the case, as there is no issue in respect to the placing of case properly on the basis of Memorandum of Understanding but that Memorandum of Understanding has itself been superceded by Agreement dated 01.11.1999 and money acknowledged through all the Exs.6 to 10, has again been acknowledged with promise to pay. The reliance of Mr. B. M. Bangash upon sections 17 and 88 is of no use as the Defendants witness has not denied execution of Ex.7 i.e. Agreement dated 01.11.1999 but has stated that it was signed under coercion but that is without evidence. More over section 17(b) read as follows:
“17(b) in all matters, the court may accept, or act on, the testimony of one man or one woman, or such other evidence as the circumstances of the case may warrant”.
The second part of above subsection allows the court to reach conclusion on the basis of other evidence as the circumstances of the case may warrant, hence the contention has no force. Section 88 of Qanun-e-Shahadat Ordinance has no relevancy, as original documents have been exhibited.
I find that although all the Defendants are involved themselves into receiving the money but the plaintiff and the Defendant No.1 agreed themselves by executing Agreement dated 01.11.1999 that the Defendant No.1 will pay back money to the plaintiff, therefore, I decree the Suit with costs in the sum of Rs.30,00,000/- against Defendant No. 1 with 10% markup from 01.11.1999 i.e. the date of the said Agreement. No damages are awarded as the plaintiff has not led any evidence in this respect.
J U D G E
Samie/