IN THE HIGH COURT OF SINDH, KARACHI

PRESENT:

Mr. Justice Aqeel Ahmed Abbasi

Justice Mrs. Kausar Sultana Hussain

Ist Appeal No.91 of 2021

APPELLANT: Mansoor Ahmed Mughal through

through Mr. Shahzaib Akhtar Khan, Advocate.

RESPONDENT No.1 Mrs. Naureen Mughal

through Mr. Muhammad Faisal Khan,

Advocate

Date of Hearing: 02.11.2022.

Date of Short Order: 02.11.2022.

O R D E R

AQEEL AHMED ABBASI, J : - Instant Ist Appeal has been filed against the impugned judgment and decree dated 02.11.2021 passed by XIth Additional District Judge, Karachi South, in Summary Suit No.35 of 2020, whereby, the said summary suit filed under Order XXXVII Rule 2 C.P.C. read with Section 151 C.P.C. by the respondent No.1 for recovery of Rs.80,00,000/- has been decreed in the sum of Rs.60,00,000/- with interest at the rate of 7.5% per annum from the date of filing of the suit.

2. Briefly, the facts as stated in the memo of appeal are that the appellant is a retired Pilot, who had served in Pakistan International Airline Corporation as Captain, whereas, the respondent No.1 is former daughter-in-law of the appellant, who got married with appellant’s son according to Sunni Muslim rites.

3. The Respondent No.1 and the Appellant's son were married according to Sunni Muslim rites, at Karachi on 10.01.1995, and from the said wedlock three (03) children were born namely Simran Mughal (born on 08.06.1996), Palwashay Mughal (born on 06.11.1998) and Bilal Mughal (born on 18.09.1999) (hereinafter as "the children"). The marriage between the Respondent No.1 and the Appellant's son, however, has recently been dissolved due to the divorce pronounced by the Respondent No.1.

4. That sometime in and around the year 2019, due to high inflation rate in the country, the Appellant's son could not afford to pay the educational expenses of his daughters, due to which a dispute arose between the Respondent No.1 and the Appellant's son wherein the Respondent No.1 threatened her own husband i.e. the Appellant's son with severe consequences, should he fail to make his ends meet and bear the educational expenses of the daughters. It may also be pertinent to note that the marital relationship between the Appellants son and the Respondent No.1 was under extreme stress at this point.

5. According to the appellant, the Respondent No.I also broke into the Appellant's residence and it is submitted with extreme disappointment, the Respondent No.1 proceeded to physically assault and manhandle her old aged father-in-law, i.e. the Appellant and his family and also broke precious household items simply because of the fact that the husband of the Respondent No.1 could not afford the financial expenses of the daughters on time as he previously used to. The Respondent No.1 thereafter continued with her physical harassment, intimidation and threats towards the Appellant and his family so did the visits by the Police to the house of the Appellant. Meanwhile, the Appellant's son who was out of the country to perform his employment responsibilities during these events- also had to come back to the country abruptly after learning that his wife i.e. the Respondent No.1 had been causing havoc at his father's house.

6. It has been further alleged that the Respondent No.1, then came up with a demand that the Respondent No.1 and the Appellant's son to enter into a Memorandum of Understanding (hereinafter as the "the MoU") with the Appellant. The terms and conditions of this MoU being demanded by the Respondent No.1 were such that the Respondent No.1 would be lending a loan worth PKR 6,000,000/-(Rupees Six Million) to her husband for the payment of educational fees of her own children which would then be reimbursed in the next few months to the Respondent No.1 along with an interest amounting to PKR 2,000,000/- (Rupees Two Million), by the Appellant who would be the Guarantor in that MoU. The respondent No.1 demanded that in case of delay of even one day in payment after the stipulated time, a penalty of 15% per annum would be imposed upon the Appellant against the total amount of PKR 8,000,000/- (Rupees Eight Million). The Respondent No.1 said that until this demand of her was met by the Appellant, she would continue causing physical and mental agony to the Appellant and his family. As per appellant, keeping in view the mental and physical torture the Appellant and his family had endured at the hands of the Respondent No.1 and apprehending more to come, the Appellant and his son under extreme coercion and duress decided to submit to the illegal demands of the Respondent No.1 and were forced to sign an MoU dated 08.07.2019 with the Respondent No.1 wherein the Appellant is shown as a Guarantor, whereas the Respondent No.1 and the Appellant's son as the Parties.

7. According to appellant, it was in the pursuance of this MoU that the Appellant under duress and coercion had to issue four postdated cheques each amounting to PKR 2,000,000/- (Two Million Rupees) bearing Nos. 10442120, 10442121. 10442122, 10442123 dated 01.02.2020, 02.02.2020, 03.02.2020 and 04.02.2020 respectively (hereinafter as "the subject cheques"). The Appellant after having received an amount of PKR 6,000,000 from the Respondent No.1 through three (03) cheques each amounting to PKR 2,000,000 dated 15.07.2019, 16.07.2019 and 17.07.2019, immediately transferred the said amount plus an additional amount out of his own account worth PKR 900,000 (Rupees Nine Hundred Thousand) in the name of his granddaughters (the Respondent No.I's daughters) as beneficiaries.

8. In the memo of appeal, it has been further stated that among the Clauses of the MoU which convey an impression of unconscionability, one sidedness and extortion, some of these are reproduced herein below for the sake of convenience of this Hon'ble Court:

3. That it is agreed between both the parties that Mr. Mansoor Ahmed Mughal will return the principle amount of Rs. 6000,000/-... along with an additional amount of Rs. 2000,000 ...to Mrs. Naureen Mughal in shape of four post dated cheques It is also agreed between the parties that the aforesaid post dated cheques... shall remain in safe custody of Mr. Khawaja Shams-ul-Islam, Advocate till its maturity

4. That time is the essence of this MoU and even in case of delay of one day in payment after the stipulated time as mentioned in clause-3 the penalty of 15% per annum would be imposed upon the total amount of Rs. 8000,000/-...

8. That it is also agreed between Mrs. Naureen Mughal and Mr. Khurram Mughal that (God forbid) divorce would be pronounced by mutual consent of both the parties however, Mr Khurram Mughal shall not pronounce divorce to Mrs. Naureen Mughal till the completion of education of their children...

9. That, however, on 04.02.2020, a fraudulent and mala fide FIR bearing FIR No. 75 of 2020 ("the subject FIR") was lodged against the Appellant by the Respondent No.1, alleging therein that a cheque bearing No. 10442120 issued by the Appellant for PKR 2,000,000/- had been dishonored upon presentation on 01.02.2020. The Appellant was thus constrained to secure a bail before arrest which was confirmed on 15.02.2020. The trial in the subject FIR has concluded and the case is fixed for pronouncement of judgment on 10.11.2021. After the lodgment of the subject FIR, the aforesaid Appeal No. 04 of 2020 thus unfortunately became infructuous and was accordingly withdrawn. The Appellant filed the Application for grant of leave to defend in the subject summary suit, and the learned Respondent No.2, vide order dated 07.11.2020, granted leave to defend to the Appellant subject to furnishing by the Appellant a bank guarantee equivalent to the amount claimed by the Respondent No.1 in the subject summary suit. This order was impugned before this Court in Civil Revision Application No. 126 of 2020, wherein vide Order dated 19.11.2020, this Hon'ble Court was pleased to suspend the impugned Order dated 07.11.2020 to the extent where the Appellant was directed to furnish a bank guarantee. Thereafter, the issues were settled on 15.10.2021, whereas, evidence was also led in the subject suit, thereafter, the impugned judgment and decree have been passed, however, through instant appeal the appellant has impugned said judgment and decree on various grounds.

10. Learned counsel for the appellant has argued that the impugned judgment and decree suffer from non-reading and misreading of the evidence, which is perverse and contrary to the material produced by the parties in the shape of evidence before the learned trial Court. According to learned counsel for the appellant, all the issues settled by the learned trial Court in the above suit were required to be decided in favour of the appellant and against the respondent No.1, whereas, perusal of the impugned judgment reflects that material facts and the element of malafide and coercion on the part of the respondent No.1 has not been taken into consideration, therefore, the learned trial Court could not appreciate, as to how and under what circumstances, cheques were issued by the appellant in favour of the respondent No. 1, whereas, there was no consideration while preparing the memorandum of understanding and/or issuing cheques in favour of respondent No. 1. According to learned counsel for the appellant, impugned judgment is completely silent in respect of moot point as reflected in the Issue No.2 i.e. Whether the dishonored four (04) cheques were dishonestly issued by the appellant to the respondent No. 1 in discharge of obligation as to investment between the parties, as according to learned counsel, in view of contents of subject MoU, amount of Rs.60,00,000/- was being lent to the appellant's son for the purpose of education of respondent No.1's own daughters, whereas, as per Para-370 of the Principles of Muhammadan Law by D.F. Mulla, the appellant being the grand-father, could not be held liable to bear the said expenses of his grandchildren Learned counsel for the appellant further argued that in view of the legal position as settled by the Honourable Supreme Court in the case of HUMAYUN HUSSAIN v. ARSALAN HUMNAYUN AND ANOTHER (PLD 2013 SC 557), to the effect that if the father is unable to bear the maintenance of his children, the mother is bound to maintain her children if she is in easy circumstances, and only if the mother is also not able to do the same, the obligation then falls on the grandfather Learned counsel for the appellant has further argued that the learned Judge has failed to appreciate, as to whether the MoU was executed by the defendant under duress and coercion, in summary suit under Order XXXVII CPC is purely jurisdiction of this Court, however, the same can be adjudicated and decided by the Court of ordinary jurisdiction rather in summary suit filed under Order XXXVII CPC. Learned counsel for the appellant has argued that unless it is established through evidence that the subject cheques were issued dishonestly by the appellant in favour of respondent with an intention that the same shall not be encashed on the presentation within due date. The element of dishonesty and malafide on the part of appellant on issuance of the said cheques is established, therefore, does not require any detailed evidence for the purpose of ascertaining dishonestly and malafide on the part of appellant While concluding his argument, learned counsel for the appellant submitted that since there was no consideration against the cheques issued by the appellant in favour of the respondent No.1, whereas, the same were obtained through coercion and duress, therefore, summary suit filed under Order XXXVII CPC by the respondent No 1 for the recovery of an amount of Rs.60,00,000/- was misconceived, hence the same was liable to be dismissed, However, according to learned counsel, the learned Judge has erred in law and fact while passing the impugned judgment and decree in favour of the respondent No 1, whereas, the impugned judgment and decree may be set-aside and the matter may be remanded back to be decided afresh in accordance with law.

11. Conversely, learned counsel for the respondent No. 1 has vehemently opposed the contention of the learned counsel for the appellant and supported the impugned judgment and decree passed by the learned Addl. District Judge-X1, Karachi South, which according to learned counsel for the respondent, is based on and proper reading of evidence produced by the parties, and correct application and interpretation of the legal provisions relating to negotiable instrument and recovery of amount through summary suit under Order XXXVII Rule 2 C.P.C., whereas, the issues formulated by the learned Judge have been carefully decided on the basis of evidence produced by the parties. According to learned counsel for the respondent, the requirements of a summary suit for recovery of amount on the basis of Negotiable Instrument (Cheques) are fully attracted in the instant case, as admittedly the appellant has received an amount of Rs.60,00,000/- (Rupees Six Million) from the respondent No.1 through cheques and, thereafter, four cheques were issued by the appellant in favour of respondent No.1 which were dishonored on presentation, therefore, according to learned counsel, instead of proceeding for the recovery of the said amount before the Court of ordinary jurisdiction, subject suit was filed under Order XXXVII for the purpose of recovery of the amount on the basis of admitted documents (cheques). Per learned counsel, said cheques were in favour of the respondent No.1, however, without any duress or coercion, as alleged by the appellant, as nothing has been placed on record to establish the same. It has been prayed that instant appeal being devoid of any merit may be dismissed in limine.

12. We have heard the learned counsel for the parties, perused the record and have also gone through the impugned judgment and decree passed by the XIth Additional District Judge, Karachi South, whereby, Summary Suit No.35 of 2020 filed under Order XXXVII Rule 2 CPC read with Section 151 CPC by the respondent No.1 against the appellant for the recovery of Rs.80,00,000/- has been decreed in the sum of Rs.60,00,000/- with interest at the rate of 7.5% per annum from the date of filing of Suit. Perusal of the record shows that subject suit was filed for the recovery of an amount of Rs.60,00,000/- (Six Million), which was admittedly given by the respondent No.1 to the appellant in the shape of three cheques Nos.(i) 10518478, (ii) 10518477 and (iii) 10518476, dated 17.07.2019, 16.07.2019 and 15.07.2019 respectively, all drawn at Bank Al-Habib Ltd, Khayaban-e-Shamsheer Branch, Karachi, whereas, the appellant has also issued four postdated cheques to the respondent No.1 i.e. cheque Nos.(i) 10442120, (ii) 10442121, (iii) 10442122 and (iv) 10442123 dated 01.02.2020, 02.02.2020, 03.02.2020 and 04.02.2020 respectively. However, the aforesaid cheques issued by the appellant were dishonored on presentation on account of insufficient fund/stop payment, therefore, cause of action accrued in favour of respondent No.1 to seek recovery of the aforesaid amount by filing a suit under Order XXXVII Rule 2 CPC on the basis of Negotiable Instrument (cheques) as referred to hereinabove. The payment of an amount of Rs.60,00,000/- (Rupees Six Million) by the respondent No.1 to the appellant through cheques, as well the execution of postdated cheques by the appellant in favour of the respondent No.1 has not been disputed. However, the appellant has attempted to make out a case that the amount of Rs.60,00,000 (Rupees Six Million) was paid by the respondent No.1 for the education expenses of her daughters in Canada, and not as a loan for investment purpose as alleged in the plaint. It has been further argued on behalf of the appellant that execution of the aforesaid cheques and MoU dated 08.07.2019 between the parties was the result of duress and coercion exercised by the respondent No.1, therefore, subject suit filed for the recovery of aforesaid amount on the basis of disputed documents obtained through duress and coercion was not maintainable. However, perusal of the record and the evidence available on record shows that nothing has been produced by the appellant to support the allegation of exercise of duress and coercion by the respondent No.1, who is the daughter-in-law of the appellant. Learned counsel for the appellant while referring to Section 118 of the Negotiable Instruments Act, 1881 and Section 2(b), Section 10 and Section 25 of the Contract Act, 1872, attempted to argue that since the cheques in question were not made against any consideration and there was no free consent of the appellant while issuing such cheques or signing the MoU, therefore, the entire contract was void and could not be enforced by filing a suit for recovery under Order XXXVII Rule 2 CPC read with Section 151 CPC. However, the learned XIth Additional District Judge, Karachi South, while passing the impugned judgment and decree has already dealt with all these factual and legal aspects in detail and given the decision on the basis of evidence produced by the parties by formulating the issues No.2 and 3 to this effect, and has also recorded elaborate reasons while deciding those issues in favour of the respondent No.1. It will be advantageous to reproduce relevant extract from the impugned judgment on these points:-

“(a) In this regard section 118 of the Negotiable Instruments Act, 1881, is very much clear which is reproduced hereunder for ready reference:

‘118. Presumption as to negotiable instrument.```Until the contrary is proved the following presumption shall be made:-

(a) of consideration: that every negotiable instrument was made or drawn for consideration and that every such instrument, when it has been accepted, indorsed negotiated or transferred, was accepted, endorsed, negotiated or transferred for consideration;

(b) ………………………….”

From bare reading of the above mentioned section 118 of Negotiable Instruments Act, 1881, it appears that until the contrary is proved it shall be presumed that every Negotiable Instrument was made or drawn for consideration and that every such instrument when it has been accepted, endorsed, negotiated or transferred, was accepted, endorsed, negotiated or transferred for consideration. So far as the contention of learned counsel for defendant that there was no any consideration against said four post-dated cheques is concerned; here it would not be out of place to mention that the word consideration is defined in section 2(d) of the Contract Act, 1872, which is reproduce as under:-

“2(d). “consideration”, when, at the desire of the promisor the promise or any other person has done or abstained from doing or does or abstains from doing, or promises to do or to abstain from doing, something, such act or abstinence or promise is called a consideration for the promise.”

In the matter in hand, it is undisputed fact that the defendant has obtained Rs.60,00,000/- from the plaintiff with the promise to return the same to her three out of said four post-dated cheques. Therefore, it is crystal clear that the three out of said four post-dated chequests were issued by the defendant to the plaintiff for the repayment of Rs.60,00,000/- to the plaintiff which he had admittedly obtained from her. Therefore, the contention of learned defence counsel that the all said four post-dated cheques issued by the defendant; were without any consideration; is of no force as it is proved that three out of said four post-dated cheques were issued by the defendant to the plaintiff for the repayment of the amount of Rs.60,00,000/- to the plaintiff which he had admittedly obtained from her.”

“(b) So far as the second part of issue No.3 is concerned; viz. whether dishonored cheques were issued by defendant under duress and coercion from the plaintiff; in this regard section 118 of the Negotiable Instruments Act, 1881 is very much clear which is reproduced hereunder for ready reference:

‘118. Presumption as to negotiable instrument.```Until the contrary is proved the following presumption shall be made:-

(a) of consideration: that every negotiable instrument was made or drawn for consideration and that every such instrument, when it has been accepted, indorsed negotiated or transferred, was accepted, endorsed, negotiated or transferred for consideration;

(c) ………………………….”

“(c) Here it would not be out of place to mention that the word consideration is defined in section 2(d) of the Contract Act, 1872, which is reproduced as under:-

In the matter in hand, it is undisputed fact that the defendant had obtained Rs.60,00,000/- from the plaintiff with the promise to return the same to her with the additional amount of Rs.20,00,000/- in shape of said four post-dated cheques and in case of delay after stipulated time he would further pay penalty of 15% per annum to the plaintiff ont eh total amount of Rs.80,00,000/-. Therefore, it is crystal clear that the three out of said four post-dated cheques were issued by the defendant to the plaintiff for the repayment of the amount of Rs.60,00,000/- to her which he had admittedly obtained from her. Therefore, the contention of learned defence counsel that all the said four post-dated cheques were issued by the defendance were without any consideration is of no force.”

“(d) In the matter in hand, learned counsel for the defendant had contended that the said cheques were not issued by the defendant with free consent as the same were issued under coercion and duress. The word ‘coercion’ is also defined in section 15 of the Contract Act, 1872, which is reproduced as under:-

“Coercion is the committing, or threatening to commit, any act forbidden by the Pakistan Penal Code or the unlawful detaining, or threatening to detain, any property, to the prejudice of any person whatever, with the intention of causing any person to enter into an agreement.”

From the perusal of the written statement/application for leave to defend filed by the defendant as well as from the scanning of evidence of defendant and his witnesses, it appears that it is neither pleaded nor any such evidence is brought on record by the defendant or his witnesses that for using ‘coercion’ as alleged by the defendant, plaintiff committed or threatened to commit any act forbidden by the Pakistan Penal Code or she unlawfully detained or threatened to detain, any property, to the prejudice of the defendant aside whatever with the intention of causing the defendant to enter into an agreement (MoU). Therefore, in my humble opinion, the defendant has failed to prove that the said cheques were issued by him to the plaintiff under ‘coercion’. So far as the contention that the said cheques were issued under duress is concerned; the word ‘duress’ is defined in Black’s Law Dictionary (6^th Edition) as under:-

“Any unlawful threat or coercion used… to induce another to act (or not act) in a manner (they) otherwise would not (or would).”

It is also transpires from the perusal of evidence of the defendant side that in this matter defendant has neither pleaded nor did he adduce any evidence to prove that plaintiff had used any unlawful threat or coercion to induce him to issue the said cheques to her. On the contrary, it is the matter of record that defendant had issued three out of said four post-dated cheques to the plaintiff after he had obtained Rs.60,00,000/- from her just for returning the said amount.”

13. The above finding as recorded by the learned XIth Additional District Judge, Karachi South, does not suffer from any factual error or legal infirmity, whereas, the learned counsel for appellant has not been able to assist this Court as to how on mere allegation of duress and coercion, execution of the Negotiable Instrument (cheques) and other documentary evidence (MoU) produced by the parties during trial could be ignored, which otherwise remained un-rebutted, particularly, in the absence of any material or evidence to support such allegation. It is pertinent to observe that the proceedings for recovery of amount under Order XXXVII Rule 2 CPC, are based on execution of Negotiable Instrument(s), which in the instant case are admitted, whereas, it has also come on record that an amount of Rs.60,00,000/- (Rupees Six Million) was duly received by the appellant from the respondent No.1 through cheques, and the same was required to be paid by the appellant to the respondent No.1 as reflected from the execution of postdated cheques issued by the appellant in favour of respondent No.1, besides undertaking given by the appellant in the MoU dated 08.07.2019 to this effect, therefore, any other inference on the admitted facts and the evidence produced by the parties or application and interpretation of the legal provisions as referred to hereinabove, under the facts and circumstance of instant case would defeat the purpose of filing of a Summary Suit under Order XXXVII Rule 2 CPC for the recovery of amount on the basis of admitted Negotiable Instrument(s) in a summary manner.

14. In view of hereinabove facts and circumstances of the instant case, we do not find any substance in the instant appeal which is devoid of any merits, and was accordingly dismissed vide our short order dated 02.11.2022 and above are the reasons for such short order.

J U D G E

Farhan/Nadeem