Judgment Sheet

IN THE HIGH COURT OF SINDH AT KARACHI

Suit No. 744 of 2010

Date	Order with signature of Judge

Plaintiff : Nayyar Alam Siddique,

through Mr. Mukhtar Ahmed Kuber, Advocate.

Defendants : Messrs Zytex Industries (Pvt.) Limited,

Sharifuddin Agha and Izhar-ul-Haq Anjum, called absent.

Date of hearing : 30.11.2012.

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J U D G M E N T

Nadeem Akhtar, J. – This Suit has been filed by the plaintiff under the Summary Chapter of the Code of Civil Procedure, 1908, against the defendants jointly and severally for recovery of Rs.3,215,375.00 with markup thereon at the rate of 18% per annum from the date of filing of the Suit till realization of the said amount.

2. The case of the plaintiff, as averred in the plaint, is that he is running a business of manufacturing of all kinds of corrugated cartons, poly bags and packing material in the name and style of ‘Carton Kraft’ as the sole proprietor thereof. Defendants No.1 is a private limited company, and defendants 2 and 3 are its directors. At the request of defendants No.1, the plaintiff supplied cartons to defendants No.1 worth Rs.2,087,906.00. In order to settle its liability, two cheques dated 15.05.2007 and 30.06.2007 for Rs.1,043,953.00 each, which were signed by defendants 2 and 3, were handed over by defendants No.1 to the plaintiff. In order to secure the repayment of the said amount, defendants 2 and 3 executed a promissory note dated 11.04.2007 for the said amount and handed over the same in original to the plaintiff. It is alleged that both the said cheques were dishonoured upon presentation. Thereafter, the plaintiff sent a letter dated 11.04.2007 and a legal notice dated 03.04.2010 to the defendants calling upon them to pay the outstanding amount, but the defendants failed to settle their liability.

3. In the above background, this Suit was filed by the plaintiff against the defendants for recovery of the aforementioned amount under the Summary Chapter of the Code of Civil Procedure, 1908. Summons was issued to the defendants through the prescribed modes, including publication in newspaper, but the defendants did not appear nor did they file any application for leave to defend the Suit as required under Order XXXVII Rule 3 CPC. Accordingly, it was ordered on 27.09.2012 that the Suit shall proceed ex-parte against the defendants.

4. On 17.10.2012, the plaintiff examined himself and his examination-in-chief was recorded as Exhibit PW-1, wherein he reiterated the contents of the plaint and the claim made therein. He produced his affidavit in ex-parte proof as Exhibit PW-1/3 ; two original dishonoured cheques signed by defendants 2 and 3 dated 15.05.2007 and 30.06.2007 for Rs.1,043,953.00 each as Exhibits PW-1/4 and PW-1/5 ; three original memos of the bank, one dated 16.05.2007 and two dated 30.06.2007,as Exhibits PW-1/6, 1/7 and 1/8, showing reasons for not honouring the said cheques ; original promissory note dated 11.04.2007 for Rs.2,087,926.00 executed by defendants 2 and 3 as Exhibit PW-1/9 ; statement of account dated 28.02.2006 showing an amount of Rs.2,087,926.00 outstanding against defendant No.1 as Exhibit PW-1/10 ; the plaintiff’s letter dated 11.04.2007 as Exhibit PW-1/11 ; legal notice dated 03.04.2010 issued by the plaintiff’s counsel as Exhibit PW-1/12 ; dispatch receipts dated 03.04.2010 of the legal notice, issued by OCS Courier as Exhibit PW-1/13 ; a copy of the defendant No.1’s letter dated 02.04.2007 as ‘X’ ; a copy of Prime Bank’s letter dated 07.12.2006 as ‘X-1’ ; and, a copy of the plaintiff’s complaint to C.C.P.O. Karachi as ‘X-2’. The plaintiff was not cross-examined by the defendants.

5. The learned counsel for the plaintiff contended that by issuing cheques and executing promissory note in favour of the plaintiff and delivering the same to him, the defendants had admitted their liability to the extent of the entire amount mentioned therein. He submitted that the defendants were obliged to settle their said liability, but they miserably failed in doing so. He further submitted that the admission of liability by the defendants is sufficient for the plaintiff to prove its claim against the defendants. He pointed out that despite proper service, the defendants did not appear nor did they file any application for leave to defend. It was urged that the plaintiff is entitled to a decree as prayed for in this Suit, as the submissions made by him in his plaint as well as the evidence produced by him have remained un-rebutted.

6. I have heard the learned counsel for the plaintiff and have also carefully examined the material available on record. Exhibit PW-1/8, which is the memo dated 16.05.2007 issued by the defendants’ / drawers’ bank, shows that cheque (PW-1/5) for Rs.1,043,953.00 issued by the defendants was dishonoured for lack of funds. Likewise, Exhibits PW-1/6 and PW-1/7, which are the memos dated 30.06.2007 issued by the defendants’ / drawers’ bank, show that both the cheques (PW-1/4 and PW-1/5) for Rs.1,043,953.00 each issued by the defendants were dishonoured under the instructions of the defendants to stop their payments. I agree with the learned counsel for the plaintiff that by issuing the said cheques and executing the promissory note in favour of the plaintiff and delivering the same to him, the defendants had admitted their liability to the extent of the entire amount mentioned therein. Thus, the defendants were obliged to arrange adequate funds in their account to avoid the dishonouring of the cheques. They were also obliged to fulfill the promise made by them in the promissory note executed by them, by settling their liability when the demand was made by the plaintiff through his letter and legal notice.

7. The record shows that summons were issued through all the prescribed modes, including publication in the Urdu daily ‘Jang’ of 04.01.2012. The record further shows that as per the bailiff’s report dated 29.12.2011, the summons was pasted at the address of the defendants. Despite all the above, the defendants chose to remain absent and not to contest the plaintiff’s claim. Therefore, there is no doubt that the averments made in the plaint and the evidence produced by the plaintiff have remained unchallenged and un-rebutted. Even otherwise, it is well- settled that if the defendant does not file an application for leave to defend, the averments and allegations made in the plaint are not only to be deemed as correct, but also admitted by him, and in such an event, the plaintiff becomes entitled to a decree.

8. In view of the above, the plaintiff has successfully discharged his burden and has succeeded in proving his claim. Accordingly, the plaintiff is entitled to a decree against the defendants, jointly and severally, to the extent of the aggregate amount of both the dishonoured cheques, that is, Rs.2,087,906.00.

9. Forgoing are the reasons of the short order announced by me on 30.11.2012, whereby this Suit was decreed with costs against the defendants in the sum of Rs.2,087,906.00 (Rupees two million eighty seven thousand nine hundred and six only) with profit thereon as provided in Rule 2(2) of Order XXXVII CPC.

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J U D G E