ORDER SHEET
Suit No. 1307 of 2010
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DATE ORDER WITH SIGNATURE OF JUDGE
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For final disposal
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Date of hearing 15.08.2012
Mr. Ch. Muhammad Iqbal Advocate for the plaintiff
.x.x.x..x.
MUHAMMAD SHAFI SIDDIQUI,J: This is a suit under Order XXXVII CPC for recovery of Rs.15,80,000/- along with cost and damages. Notices and summons were issued and ultimately served through publication dated 30.10.2011. However, nobody appeared on behalf of the defendant and the matter was ordered to proceed ex-parte. The service was held good on 29.11.2011.
2. It is contended by the learned Counsel for the plaintiff that it is a private limited company having registered office at D-38, S.I.T.E. Karachi and the defendant is country Manager of a TV Channel known as SAARC Media. It is contended by the learned Counsel that the defendant’s business is of providing T.V. programme. Consequently the defendant proposed the plaintiff to produce a TV program on the terms and conditions, inter alia, mentioned in Agreement dated 21.8.2007 which was to be broadcasted from Bombay India entitled “Habib Cooking Oil with Sanjeev Kapoor”. The agreement was signed including hiring the Chef Sanjeev Kapoor to demonstrate his matchless cooking expertise, experience, tips and guidelines during TV show. The show was agreed to be consisted of 26 episodes each of 25 minutes demonstration and the total payment agreed was Rs.32,77,839/-. In this way the agreement was entered into and the defendant accepted all responsibilities of the show and it has to be filmed and to promote dishes of Pakistani, Indian and Chinese origins along with traditional desserts which were to be prepared by Sanjeev Kapoort. It was agreed in the Agreement dated 21.8.2007 that within 25 days the shooting will commence after signing the agreement. It was also agreed that a colourful and attractive cooking book as well as another version in the form of CD and other accessories be finalized which is to be done in the same amount. In payment schedule it is further agreed as under:
a. Rs.3,85,628.46 which is equal to ten percent of the total cost to be paid as advance at the time of the proposal-cum-agreement dated 21.8.2007.
b. Rs.9,64,071.15 which is equal to twenty five percent of the total cost to be paid as advance at the time of construction of kitchen set in the studios, purchase of kitchen appliances and other gadgets.
c. Rs.19,28,142.29 which is equal to fifty percent of the total cost to be paid for one day prior to the shooting of the 1st episode of the said T.V. show.
d. Rs.5,78,442.69 which is equal to fifteen percent of the total cost to be paid on final approval of the film.
3. The plaintiff thus paid full and final amount of the contract for producing TV program in the name and style of “Habib Cooking Oil with Sanjeev Kapoor”. Such oil products were specifically handed over to the defendants on 25.3.2008 and the defendant personally appeared before the representative for the plaintiff and claimed last instalment of settled amount of Rs.18,12,453/- which was handed over on the same date. That after full and final payment of Rs.32,77,839/- including all expenses as per Agreement dated 21.8.2007, the defendant failed to respond pursuant to the aforesaid agreement. The plaintiff then contacted the defendant for doing needful but the defendant made evasive and pretentious statement to extend the time prescribed in the agreement which was extended by two weeks. However, he was not able to respond even after two weeks and lame excuses were made to delay/prolong the matter in order to usurp, embezzle and misappropriate the amount of the plaintiff. It is submitted by the learned Counsel for the plaintiff that the plaintiff in the hope of fabulous increase in his different products, along with this T.V. programme signed several contracts with many small and big companies to buy the raw materials and invested huge amount for the increase of standard and quality of his products, however all in vain. Learned Counsel further submitted that at the expiry of further extended time which was granted at the request of the defendant for completion of arrangements, the defendant inspite of making several promises deliberately, fraudulently and mischievously violated the terms and conditions of the agreement. The plaintiff tried his level best to contact with the defendant to persuade him to perform his contractual obligation, however all efforts were failed. The time came when the defendant disappeared and avoided to meet the representative of the plaintiff with malafide intention and ulterior motives. Ultimately the plaintiff succeeded to trace the defendant and reminded him about his failure. However, he has shown inability to continue and perform in terms of the agreement. The defendant was then requested to return the received amount of Rs.32,77,839/-. The defendant thus admitted fault committed in non-fulfilment of his contractual obligations and acknowledged amount of Rs.32,77,839/-. The plaintiff had also no option except to accept the refund of their amount as per proposal of the defendant in order to escape from further business and financial losses. However, the defendant paid Rs.16,97,000/- through pay order and promised to pay remaining amount in a short time in cash. Subsequently in pursuance of the promise of the defendant for the payment of remaining amount of Rs.15,80,000/- the plaintiff contacted the defendant but the defendant insptie of assurance for making full payment amounting to Rs.15,80,000/- issued two post-dated cheques description of which are as under:-
S.NO. DATE CHEQUE NO. AMOUNT
1. 30-06-2008 WPB-3455069 Rs.10,00,000/-
2. 05-07-2008 WPB-3455070 Rs. 5,80,000/-
4. On presentation of the said cheques on the prescribed dates at the relevant branch, the cheques were bounced on account of insufficient funds. The plaintiff informed the defendant about the dishonourment of cheques to which he promised to pay and further requested that no legal action for dishonouring of cheques may be taken against him. However, despite consistent breach and after the expiry of the time extended for the payment of Rs.15,80,000/- in respect of the two bounced cheques referred above all efforts were in vain. The defendant sent e-mail to the representative of the plaintiff on 18.10.2008 at 10:41 a.m. whereby he acknowledged payment of the total amount of Rs.32,77,839/- received by him and the amount refunded by him through pay order amounting to Rss.16,97,000/- and tendered his apology for behaving fraudulently. He, however, asked for further extension of time to pay the remaining amount within 30 days vide his above referred e-mail. The defendant despite the above has failed to respond and through several e-mails sought extension of time in repayment of balance amount of Rs.15,80,000/-. Ultimately the plaintiff lodged an FIR No.254/2010 in Police Station SITE-A, Karachi under section 489-F PPC on 12.3.2010 agaisnt the defendant and the defendant was subsequently arrested on 21.3.2010 by SITE Police Station and charge has been framed inasmuch as “ The defendant had issued two cheques bearing No. WPB-3455069, Rs.10,00,000/- dated 30-06-2008 and Cheque No. WPB-3455070, Rs.5,80,000/- dated 05-07-2008 which were presented in the relevant bank branch at Karachi on a date consented by the defendant for encashment but were bounded with the remarks funds insufficient.”
5. Counsel further submitted that the defendant was released on bail considering his old age and sickness. Consequently the plaintiff has filed this suit for recovery of the amount of Rs.15,80,000/-. Since the defendant has failed to appear and file any reply pursuant to the plaintiff’s claim and the documents attached therewith he has been declared to proceed ex-parte.
6. I have heard the learned Counsel and have perused the record. Prima facie it appears to be a simple case for the recovery of outstanding amount of Rs.15,80,000/- which was to be paid by defendant and in pursuance whereof two cheques referred above dated 30.6.2008 and 05.7.2008 were issued by the defendant. The e-mails which have been shown as annexures P-8 to P-11 also confirms the contention of the plaintiff. I see no impediment in granting the prayer as prayed in the suit to the extent of the amount of the bounced cheques i.e. Rs.15,80,000/- in terms of prayer clauses (a) only. However, the learned Counsel for the plaintiff did not press prayer clauses (b), (c) and (d).
7. Consequently, the suit of the plaintiff is decreed only in terms of prayer clause (a) however with interest as prescribed under sub rule 2 of Order 37 CPC with cost.
JUDGE