IN   THE   HIGH   COURT   OF   SINDH   AT  KARACHI

Suit No. 1641 of 2007

 

 

Plaintiff:-                        Mr. Mushtaq Ali S/o Hussain Ali

 

through Mr. Syed Nasir Hussain Jafri,

Advocate for the plaintiffs.

 

Defendants:-                  1.       Muhammad Aslam

          S/o Shaikh Muhammad Boota,

 

2.                 Maqsood Aslam S/o Muhammad Aslam

 

None present for the defendants side

 

 

Date of hearing       30.04.2010

Date of Judgment   26.05.2010

 

J U D G M E N T

 

SYED HASAN AZHAR RIZVI, J          The present suit has been filed by the plaintiff against the defendants for recovery of Rs.33,00,000/-. Brief facts of the case are that the plaintiff is carrying on business of purchase and sale of Pig Iron, besides his other business. The defendant No.1 is carrying his business at Karachi under the name "Pak Wahadat Transport Co." and also running his hotel besides dealing in steel scrap etc. The defendant No.2 being the son of defendant No.1 working and assisting the defendant No.1 in his business. The claim of the plaintiff is that in December 2005 the defendant No.1 approached the plaintiff and showed his interest in purchasing Pig Iron. Accordingly, the plaintiff agreed to supply the Pig Iron as per orders as and when placed by the defendant No.1. The prevailing market practice about Pig Iron was that the transaction between the parties were generally oral. On placement of the requirement of the defendant No.1, the plaintiff supplied Pig Iron from time to time, the defendants used to pay the cost of material supplied to them by issuing cash chaques/cash payment and the same were always deposited in various bank accounts maintained by the sellers including the plaintiff herein in various names. The modus operandi of the defendant No.1 was that he always got the cheques issued form the account of his son, the defendant No.2 herein. Besides the defendant No.2 two other sons of defendant No.1 are also working with the defendant No.1. The cheques which were issued by the defendant No.2 on behalf of and under the instructions of defendant No.1 used to be encashed through the bank. However sometimes it happened that the cheques, on presentation, were dis-honoured for want of sufficient fund. On subsequent presentation at the instance of the defendants, the cheques were ultimately encashed. Since the business transaction with the defendants was otherwise going without any difficulty, except sometimes the payments were delayed and the cheques were dis-honoured, and since the cost of material supplied to the defendants was being received by the plaintiff, the relations between the two became quite cordial. The plaintiff thus found no difficulty in placing implicit faith on the credibility of the defendants, therefore, he continued to supply the material as and when demanded even if the payment was delayed for sometime. For about four months period the defendants had proved to be sincere and honest in the payment of the cost of material purchased from the plaintiff and other parties in the market, the plaintiff did not hesitate in continuing the supply of material as and when demanded by the defendant: Even if the cheques were issued after sufficient time of the supply of the goods. At one stage, the defendant No.2 under instructions of defendant No.1 and as per his internal arrangement, issued Cheque No.329078 dated 27.7.2006, drawn on KASB Bank Ltd, for Rs.500,000/-, that was dishonoured with the remarks even when it was presented on 28/29.7.2006 and 16.10.2006 The Cheque No.0136464 dated 15.6.2006 drawn on Allied Bank Limited, Karachi for Rs.400,000/- presented on 13.11.2006 and 15.11.2006 was also bounced. In the same manner Cheque No.6965658 dated 15.9.2006 drawn on Allied Bank Limited, Karachi for Rs.8,00,000/- presented on 13.11.2006 and 5.11.2006 was dishonoured. The subsequent or delayed presentation of cheques by the plaintiff in the bank was always at the request of the defendants. The plaintiff did not doubt the honesty of the defendant, he continued to supply the material despite non-payment and bouncing of the cheques. Finally after accounting it transpired to the plaintiff that a sum of Rs.33,00,000/- became outstanding against the defendants. Despite repeated approaches to the defendants, jointly and severally, the payment was not made and the plaintiff was always kept on false hopes by the defendants. On one stage, it came to the knowledge of the plaintiff that the defendants have also purchased similar material from various persons in the market from time to time for crores of rupees and have issued cheques to the suppliers in the market from time to time and all such cheques continued to be dishonoured on presentation. Accordingly, the Association issued a circular against the conduct of the defendants. Having come to know about the conduct of defendants, the plaintiff had to be alert and pressurized the defendants to clear the payment otherwise he would be compelled to initiate legal proceedings. The defendants instead of making payment threatened the plaintiff for dire consequences and the plaintiff lodged FIR No.104/2007 and 147/2007 in respect of two cheques Nos.0136464 dated 15.6.2006 and 6965658 dated 15.9.2006, amounting to Rs.400,000/- and Rs.800,000/- respectively. The defendant No.2 was then arrested by the Police and he is still facing trial. However, the defendant No.1 and his another son were exonerated by the concerned police on the sole ground that the cheques were issued only by defendant No.2.  When the defendants were pressurized for making payment the defendant No.2 made a complaint to CCPO Karachi wherein he at least categorically admitted that he had the business with the plaintiff and according to him a sum of Rs.28,00,000/- was outstanding against him payable to the plaintiff and for that he was not in a position to make payment. While seeking bail in the aforementioned cases the defendant No.2 repeated demand that he owes an amount of Rs.28,00,000/- to the plaintiff. An amount of Rs.28,00,000/- have been admitted to be outstanding against the defendants, although an amount of Rs.33,00,000/- was outstanding towards the defendants, hence the plaintiff filed the present suit and has prayed to this Hon'ble Court to pass judgment and decree in favour of the plaintiff against the defendants jointly and severally in the sum of Rs.33,00,000/- with 15% mark up from the date when payment became due and still its realization with cost.

2.         The suit was admitted and notices/summons were issued on 1st January, 2008 for 7th February, 2008. On 22.1.2008 the summon was received by the son of the defendant No.1. By the orders of this Court dated 4.2.2008 the defendants Nos.1 and 2 had been served, but nobody appeared and the Nazir of this Court was appointed to attach the Plot No.40/A, Mauripur Road, (Lyari Old Truck Stand), Karachi with construction thereon. By the orders dated 31.3.2008 of this Court it was found that the defendant was served on 23.1.2009 and the defendant No.2 was in jail and served on 24.1.2008. There was no specific order passed by the Additional Registrar as well as by this Court for filing written statement by the defendants and hence this Court directed to place the matter before the Additional Registrar who after satisfying himself about service will place the matter before this Court for appropriate orders. On 15.4.2008 the Additional Registrar in his report submitted that as per report of Superintendent District Jail Malir the defendant No.2 had been served on 23.1.2008 but no written statement has been filed by both the defendants Nos.1 and 2 and granted two weeks time to the defendants to file the written statement. On 19th April, 2008 the defendant had filed application CMA No.2373/08 under Section 151 CPC to stay the proceedings passed under Order 38 Rule 5 CPC by the order dated 4.2.2008 the said application was dismissed on 12.5.2008 for non-prosecution.

3.         On 5.9.2008 learned counsel for the defendant No.1 filed two applications being CMA Nos.8682/2008 and 8683/2003 for setting aside the order dated 4.8.2008. Again on 18.11.2008 the defendant No.1 filed application being CMA No.11584/2008 under Order 9 Rule 9 read with Section 151 CPC  for restoration of application. On 2.3.2009 son of the defendant No.1 was present in Court and requested for adjournment as his counsel was admitted in the hospital, this Court as a last chance adjourned the case. On 30.3.2009 the arguments on application being CMA No.11548/2008 was heard by this Court and reserved the order by a detailed order dated 9.4.2009 this Court dismissed the application being CMA No.11548/2008 filed by the defendant No.1.

4.         On 5.5.2009 the plaintiff alongwith his counsel was present before the Court and reiterated the contents of his affidavit-in-exparte proof, the defendant No.1 was also present on that day with his counsel. On 19.5.2009 the counsel for the parties were present the learned counsel for the plaintiff submitted photocopies of certificate and FIRs issued by SHO P.S. Kharadar, South-Division of Case No.152/2007 and Case No.125/2007 pending before the Ist Judicial Magistrate, Karachi-South and Case No.143/2008 pending before the IVth Judicial Magistrate , Karachi South alongwith Cheque with bank endorsement lying in Malkhana, to be produced before the next date of hearing. On 17.8.2009 Mr. Nasir Hussain Jafri, learned counsel for the plaintiff pointed out that due to typographical error number of Cr. Case of which R&P was mentioned as "143/08" instead of "443/08" and therefore necessary correction be made in the order. Office was directed to issue fresh directions for submission of R&P in Cr. Case No.443/08. On 16.12.2009 the present suit was fixed before this Court, learned counsel for the plaintiff was present, a Cheque No.0136464 dated 15.6.2006 amounting to Rs.400,000/- drawn on Allied Bank of Pakistan Ltd and two memorandums dated 13.92006 and 16.11.2006 of Allied Bank Limited Cloth Market Branch, M.A. Jinnah Road Karachi had been received from the Court of Ist Civil Judge/Judicial Magistrate Karachi South alongwith R&Ps of Cr. Case No. 125/2007 and Cheque No.6965658 dated 15.9.2006 amounting to Rs.800,000/- drawn on Allied Bank of Pakistan Ltd and two memorandum dated 13.9.2006 and 16.11.2006 of Allied Bank of Pakistan Cloth Market Branch, M.A. Jinnah Road Karachi had been received from the Court of Ist Civil Judge/Judicial Magistrate Karachi South alongwith R&Ps of Cr. Case No.152/2007. On 304.2010 none was present for the defendants and plaintiff was examined before this Court who produced the following documents

"Affidavit-in-exparte proof as Ex-PW-5/1/1, Photocopy of Cheque No.3290798 dated 27.7.2006 amounting to Rs.500,000/- as Ex-PW-5/1/2 alongwith return memo. Photocopy of Cheque No.0126464 dated 15.6.2006 amounting to Rs.400,000/- as EX-PW-5/1/3 alongwith return memo. Photocopy of Cheque No.09665658 dated 15.9.2006 amounting to Rs.800,000/- as Ex-PW-5/1/4 alongwith return memo. Photocopies of FIR No.147/07 registered at Baldia Police Station, Karachi on 15.6.2006, FIR No.295/07, registered at Kharadar Police Station dated 26.12.2007 and FIR No.104/07 registered at Kharadar Police Station dated 15.7.2006 as Ex-PW-5/1/5 to Ex-PW-5/1/7. General Circular issued by Sindh Steel Traders & Consumers Association dated 18.5.2007 as Ex-PW-5/1/8. Photocopy of application submitted to the CCPO Karachi dated 28.4.2007 by one Maqsood Aslam, defendant No.2 as Ex-PW-5/1/9. Photocopy of Bail Application No.459/2007 filed in the Court of District & Sessions Judge Karachi South by defendant No.2 on 21.5.2007 as Ex-PW-5/1/10."

 

5.         The plaintiff in his affidavit-in-exparte proof reiterated the contents of the plaint and further stated that an amount of Rs.33,00,000/- outstanding and payable against the defendants to the plaintiff and Maqsood Aslam the defendant No.2 has admitted his liability to the extent of Rs.28,00,000/-. It is further stated in the affidavit-in-exparte proof that the plaintiff had also prayed for attachment of Plot No.40/A, Mauripur Road, Karachi wherein the defendant No.1 is carrying on business and the said application was allowed by this Court and the said property was attached by the Nazir of this Court after due notice. The defendants were duly and repeatedly served in the present suit the defendants appeared before this Court but did not filed written statement or denied any claim referred to in the suit, nor the attachment order, both have been declared exparte.

6.         That the claim of the plaintiff against the defendants is verified on oath in the memo of plaint. The defendants were duly served in accordance with law, contested the matter, represented by an Advocate, but have failed to file the written statement. The plaintiff filed affidavit-in-exparte proof and enclosed the relevant documents alongwith his affidavit-in-exparte proof. Plaintiff has not been croos-examined by the counsel for the defendants. The claim of the plaintiff is for Rs.33,00,000/- against the defendants jointly and severally with 15% mark up from the date when payment became due and till its realization with costs has not been controverted, challenged or denied by the defendants.

7.         In view of the facts, circumstances and un-rebutted and unchallenged evidence produced before this Court by the plaintiff the present suit is decreed in the sum of Rs.33,00,000/- with mark up as prescribed by the State Bank of Pakistan from the date of filing of the suit till realization with costs.

 

JUDGE