IN   THE   HIGH   COURT   OF   SINDH   AT  KARACHI

Suit No. 1504 of 2007

 

Plaintiff:-                        M/s. EFU General Insurance Company,

 

through Mr. Ishrat Alvi,

Advocate for the plaintiff.

 

Defendants:-                  1.       M/s Aero Asia (Pvt) Ltd,

 

2.       Mr. Khalil Ahmed

 

Mr. Imran Ameer, Advocate holding brief for

Mr. Ali Gohar Masroof,

Advocate for defendants.

 

 

Date of hearing       18.05.2010

Date of Judgment       .05.2010

 

J U D G M E N T

 

SYED HASAN AZHAR RIZVI, J          This present suit has been filed under Order XXXVII CPC under summary chapter for recovery of Rs.10.00 million. The plaintiff is an Insurance Company. The defendant No.1 is a company engaged in the aeronautical industry and is plying a commercial domestic airline. The defendant No.2 is the Executive Director of defendant No.1. The defendants entered into an agreement with Shell Pakistan Ltd for the supply of fuel. In that connection Shell Pakistan Ltd. required a guarantee/bond from a reputable insurance company, therefore, the plaintiff approached by the defendants for executing a supply bond. On 16th December, 2006 the plaintiff furnished a supply bond to Shell Pakistan Ltd for an amount of Rs.10.00 million for the period commencing from 1st January, 2007 to 30th June, 2007. At the time of issuance of bond the plaintiff required from the defendant No.1 certain guarantees and therefore, counter guarantee was given by the defendant No.1 alongwith a demand promissory note and a personal counter guarantee was given by the defendant No.2 in his personal capacity alongwith a demand promissory note for the sum of Rs.10.00 million. The defendants placed in the custody of the plaintiff sale deeds for (1) Shops No.G-5 and
G-12, Ground Floor, Simla Tower, 5 Davis Road, Lahore, (II) Offices at F-05 and F-08, First Floor, Simla Tower, 5 Davis Road, Lahore. The defendants in addition to the above had given to the plaintiff an undated cheque with the assurance that in case upon communication the defendants fail to make the requisite payment, the same can be obtained through process of deposit of the said cheque. Upon receipt of the above stated documents from the defendants, the said supply bond was issued for a period as stated above. On 11.5.2007 the plaintiff received a letter from Shell Pakistan Ltd wherein they were informed that the defendants have failed to make the payment so mentioned in the supply bond and therefore, they called upon the plaintiff's to encashed the said bond and credit the same. On 6.5.2007 the plaintiff wrote to the defendant No.2 regarding the letter received from Shell Pakistan and requested to know the factual position and current status. After receiving no positive reply from the defendants the plaintiff made the said payment to Shell Pakistan Ltd vide cheque No.1552314 dated 17.5.2007, drawn on UBL City Branch and obtained a claim disbursement voucher in the said cheque. After payment of Rs.10.00 million to Shell Pakistan Ltd the plaintiff initiated correspondence with the defendants for the reimbursement of the said amount to the plaintiff. Upon received no positive assurance from the defendants, the plaintiff addressed a legal notice to the defendants through their counsel dated 28.6.2007 wherein the defendants were called upon to make the said payment failing which it was intimated that legal action would be initiated against them. On 3.7.2007 the defendants addressed a letter to the Managing Director of the plaintiff company stating their position that they would make the payment within a certain time of seven to ten days. The plaintiff once again tried to obtain the positive response of the defendants wherein after the said undated cheque, given by the plaintiff, was dated and presented for encashment. However, the same was returned/dishonoured with the notation "funds not sufficient". Thereafter the plaintiff addressed another legal notice dated 29.9.2007 informing the defendants that the above mentioned cheque has been dishonoured and calling upon them to make the payment of Rs.10.00 million as per the demand promissory note executed  by them alongwith counter guarantee. The defendants failed, refused, neglected and ignored the said demand promissory note and therefore the plaintiffs have become liable to file the present suit. The defendants are jointly, severally, truly and actually indebted to the plaintiff in the sum of Rs.10.00 million with profit at the rate of 15% per annum from the date of demand till realization of the amount so claimed. On failure of the defendants to pay the outstanding amount of Rs.10.00 million the plaintiff on 21.11.2007 filed the present suit for recovery through Mr. Nadeemuddin S/o Fakhuruddin Farooqi, Vice President, duly constituted attorney of the plaintiff company, in this Court with the following prayer:-

(a)               "Decree for recovery of amount in the sum of Rs.10,000,000/- under Order XXXVII CPC against the defendants jointly & severally with mark up at the rate of 15% per annum from the institution of the suit till the realization of the decretal amount.

 

(b)               Any other or better relief which this Hon'ble Court may deem fit and proper under the circumstances of the case.

 

(c)               Cost of the proceedings."

 

2.         Summons were issued repeatedly to the defendants. The plaintiff filed application bearing CMA No.9818/2007 under Order XXXVIII Rule-5 CPC for attachment before judgment, the said application was fixed before this Court on 12.12.2007, this Court was pleased to pass the order to attach
Shops Nos.G-5 and G-12, Ground Floor, Simla Tower, 5 Davis Road, Lahore and Offices Nos.F-05 and F-08, 1st Floor, Simla Tower, 5 Davis Road, Lahore. Nazir was appointed as Commissioner to affect attachment order through District Judge Lahore. On 15.1.2008 the Nazir submitted compliance report and stated that on 12.1.2008 he received attachment notice which was duly served and copies whereof also delivered by the bailiff of the Court of Senior Civil Judge, Lahore to the concerned authorities for information and necessary action and the order of this Court has been complied with. On 15.3.2008 the plaintiff filed application bearing CMA No.2662/2008 under Order 5 Rule 20 CPC for effecting the service upon the defendant No.1 through publication, courier service etc, as there is no other way that the service can be effected. The said application was granted on 9.5.2008. The summons issued to the defendants Nos.1 and 2 published in daily Jang Urdu dated 21.5.2008 alongwith all other modes as well as through courier service, registered A.D. post, affixing on Court Notice Board and on 5.9.2008 the service was declared held good. None appeared for the defendants, therefore, the matter was fixed for final disposal. On 23rd October, 2008 the matter was fixed before this Court when Mr. Ali Gohar Masroof, Advocate filed power on behalf of the defendants which was taken on record. On 1.11.2008 an application bearing CMA No.10554/2008 under Order IX Rule IX CPC read with Section 151 CPC filed by the defendants to recall the exparte order dated 5.9.2008. On 5.11.2008 the defendants filed an application under Article 5 of the Limitation Act R/W Section 151 CPC. On 17.10.2008 the defendants filed application for leave the defend bearing CMA No.9863/2008. The plaintiff replied the said application.

3.         On 8.4.2010 the above said applications filed by the defendants bearing CMA Nos.10554/2008, 10555/2008 and 9863/2009 fixed for hearing were dismissed by this Court for non-prosecution and the matter was fixed on 18.5.2010 for final disposal. Mr. Ishrat Alvi, counsel for the plaintiff was present on that date and Mr. Imran Ameer, Advocate holding brief for Mr. Ali Gohar Masroof, Advocate for the defendants. Mr. Ishrat Aliv, Advocate argued the matter and submits that the time barred application for leave to defend, for condonation of delay and application for recalling the exparte order dated 5.9.2008 have already been dismissed on 8.4.2010 and no application has been filed by the defendants to recall the order dated 8.4.2010. Mr. Ishrat Ali, Advocate for the plaintiff further submitted that in the application for leave to defend the defendants admitted the fact that the plaintiff made the payment to M/s. Shell Pakistan Ltd. He further argued that the defendants in the dismissed application for leave to defend have not denied the facts of execution of promissory notes signing of counter guarantees. Issuance of Cheque No.8061721 for Rs.10.00 million by the defendants in favour of the plaintiff EFU. Learned counsel for the plaintiff has urged that the defendants have failed to controvert, rebut and deny the averments of the memo of plaint and have failed to challenge the documents enclosed with the memo of plaint in the present suit. The defendants have filed a time barred application for leave to defend which has already been dismissed on 8.4.2010. The averments of the application for leave to defend are false, misleading and baseless. Mr.Ishrat Alvi, Advocate further submitted that by the order of this Court the properties of the defendants had been attached in January 2008 yet the defendants chose to remain absent and failed to contest the present suit. Mr.Ishrat Alvi, Advocate urged that the defendants in any of the application filed in the present case has not disputed, challenged or denied claim of the plaintiffs or any of the document enclosed with the memo of plaint. He submitted that the suit be decreed as prayed for.

4.         I have perused the record and it reveals that despite of service upon the defendants the defendants have failed to file the application for leave to defend within the statutory period. The defendants after an unexplained delay filed a vague and baseless application for leave to defend and applications for recalling the exparte order and for condonation of delay. The defendants have failed to deny, rebut or challenge the documents enclosed with the memo of plaint in the present suit, specially the promissory notes annexure B-1, B-3 executed by the defendants in favour of the plaintiff and the cheque
annexure-H alongwith memorandum of UBL dated 16.8.2007. All the applications field by the defendants referred to above admittedly dismissed on 8.4.2010 for non-prosecution and no application for restoration of the same has been filed. The claim of the plaintiff is based on averments of plaintiff's authorized Officer worn on Oath supported with unchallenged and unrebutted documentary evidence. I, therefore, decreed the present suit in favour of the plaintiff against the defendants for recovery of the amount in the sum of Rs.10.00 million under Order XXXVII CPC jointly and severally with mark up as prescribed by the State Bank of Pakistan from the date of institution of the present suit till the realization of the whole decretal amount alongwith the cost of the suit.

JUDGE