P L D 2024 Balochistan 18
Before Muhammad Kamran Khan Mulakhail and Muhammad Aamir Nawaz Rana, JJ ABDUL GHAFFAR--- Appellant
Versus
MUHAMMAD AYUB and another ---Respondents
R.F.A. No. 26 of 2021, decided on 24th March, 2023.
Negotiable Instruments Act (XXVI of 1881)---
----S. 118--- Qanun -e-Shahadat (10 of 1984), Art. 60--- Civil Procedure Code (V of 1908), O.
XXXVII, Rr. 1 & 2 ---Suit for recovery on the basis of promissory notes ---Document,
execution of ---Proof ---Presumption--- Denial by the defendant ---Comparison of signatures ---
Claim of the appellant/plaintiff was that on the request of respondents/defendants he
arranged a loan of ten million rupees for which a guarantee agreement and promissory notes were executed ---Trial Court dismissed the suit of the appellant/plaintiff on the ground that he
failed to prove execution of alleged documents ---Validity ---Record revealed that respondents
had strongly denied the execution of both the agreement and promissory notes so much so that they filed an application under Art. 60 of the Qanun- e-Shahadat, 1984, for analysis of
documents from the Forensic Science Lab ('the FSL'), in which regard, in the opinion of
expert, (appellant') asserted signatures (in Urdu as well as in English) of both the respondents
did not tally with the specimen/routine signatures supplied by them ---Although the initial
presumption under S. 118 of the Negotiable Instruments Act, 1881 ('the Act 1881') that a
negotiable instrument was made or drawn, or accepted or endorsed for consideration, yet the said presumption was rebuttable, but in the present case, the respondents had straight away denied the execution of alleged promissory notes, therefore, the appellant had to discharge the said burden that the promissory notes had been duly executed and signed by the respondents ---Opinion by the FSL after analysis of documents created serious doubts
regarding execution of the promissory notes ---Appellant had failed to prove payment to the
respondents and execution of promissory notes ---Contents of the promissory notes read that
payment in millions was made, surprisingly, "in cash" at Court premises (Katchehri), therefore, the complete edifice upon which the appellant had built his case stood crumbled---Even alleged agreement having been exhibited by the appellant was not notarized in accordance with applicable laws which created another doubt regarding its authenticity ---
Even the Oath Commissioner, who according to the appellant had attested promissory notes, was not produced--- Appellant also failed to prove his source and capacity to make payment,
therefore, the presumption contained in S. 118 of the Act, 1881 stood rebutted---No infirmity in reasoning and no perversity in interpretation of relevant provisions of law had been noticed in the impugned judgment and decree passed the Trial Court ---Appeal was
dismissed, in circumstances.
Ghulam Murtaza v. Muhammad Rafi 2020 CLD 265 ref.
Ajmal Khan Kasi for Appellant.
Abdul Aziz Achakzai for Respondents Nos. 1 and 2.
Date of hearing: 22nd November, 2022.
JUDGMENT
MUHAMMAD AAMIR NAWAZ RANA, J. ---The appellant had filed a suit under
Order XXXVII, C.P.C. for recovery of Rs.10,000,000/ - (Rupees Ten Million) which was
dismissed by the trial Court vide impugned judgment dated 02/10/2021.
2. The facts arising out of pleading of the parties are; the appellant, by filing suit for
recovery of Rs.10,000,000/ - (Ten Million) against respondents, had alleged that on the
request of the respondents, the appellant had arranged the loan of Rs.10,000,000/ - (Rupees
Ten Million) for them. According to appellant, Rs.4,000,000/ - (Four Million) were given in
cash, while the remaining Rs.6,000,000/ - (Six Million) were paid to the respondents through
bank account of Abdullah and Habibullah in the shape of two separate cheques amounting to
Rs.3,000,000/ - each (Rupees Three Million) of Askari Bank, Chaman Branch dated
10/07/2013 and 12/07/2013 respectively, and according to the appellant, as guarantee agreement was also executed on 28/06/2013. Apart from that, promissory notes of even date amounting to Rs. 10,000,000/ - (Rupees Ten Million) were also executed by respondents Nos.
1 and 2.
3. The record transpires that the respondents had filed leave to defend the suit, in which
they had denied the contents of the suit and stated that the alleged agreement as well as
promissory notes are results of forgery and fraud, the leave to defend suit was allowed by the trial Court vide order dated 31/08/2016, but subsequently the respondents did not appear, and through ex- parte judgment and decree dated 11/02/2017, the suit was ex- parte decreed in
favour of the appellant which order was assailed by the respondents before this Court, and vide order dated 21/03/2019, the ex- parte judgment and decree was set aside, and matter was
remanded to the trial Court for decision on merits.
4. Out of pleadings of the parties, the learned trial Court framed the following issues:
"1. Whether plaintiff has extended an amount of Rs.10 Millions as Loan to defendants?
2. Whether the documents relied upon by plaintiff has been proved in accordance with law? "
5. That thereafter parties were directed to produce evidence in support of their
respective contentions. The appellant/plaintiff produced five (5) witnesses, and thereafter the appellant recorded his statement, whereas respondents recorded their statements on oath but did not produce any evidence; on conclusion of the trial, the learned trial Court, after evaluating the evidence of the parties, dismissed the suit filed by appellant through impugned judgment.
6. Learned counsel for the appellant contended that the appellant had proven the
execution of promissory notes by defendants and execution of the agreement between the
parties. Per learned counsel, in view of the promissory notes, the respondents were bound to repay the loan obtained by them amounting to Rs.10,000,000/ - (Rupees Ten Million).
Whereas, the learned counsel appearing on the behalf of respondents controverted the
contentions of appellant's counsel and submitted that promissory notes as well as agreement
were results of forgery, as the respondents had never signed the same which fact has been
proven from the report of Forensic Science Laboratory, as ac cording to expert opinion, the
signatures of respondents do not tally with the signatures available on promissory notes and agreement. Further submitted that there exists no business relationship between the parties and since appellant has badly failed to produce any documentary or oral evidence in support of his contentions. Per learned counsel for respon- dents, the story fabricated by the appellant
regarding payment of cash amount to respondents through cheques has not been proved, therefore, trial Court had rightly dismissed the suit so filed by the appellant.
Arguments heard. Record perused.
7. The appellant has alleged that he is in the business of scrap which he shift from
Chaman to Quetta and to other places and he has no bank account, therefore, he is using the bank accounts of Abdullah and Habibullah which they maintained in the Askari Bank Chaman. According to appellant the respondents are in the business of importing cloths, therefore, appellant have good relationship with respondents. In this back drop, the appellant on the request of respondents have paid them 4,000,000/ - (Rupees Four Million) in cash
while 6,000,000/ - (Rupees Six Million) were paid by him through bank accounts of Abdullah
and Habibullah; for the security purpose the agreement dated 28.06.2013 was executed and promissory notes on the same date was also executed by the respondents in which it was
stipulated that amount received by respondents shall be detained by or before 01.08.2013.
The appellant has not produced any evidence that the alleged cheques purportedly
issued by Abdullah and Habibullah and were encashed by the respondents, the appellant has also failed to bring on record any evidence which could prove that respondents are in the business of importing cloths or to that matter even appellant failed to prove that he himself is in the business of scrap as no documentary evidence in this regard was produced by the appellant.
8. The respondents have strongly denied the execution of the agreement as well as
execution of alleged promissory notes, so much so, they have filed an application under Article 60 of Qanun- e-Shahadat, 1984 for analysis of documents from FSL, Quetta. In this
regard trial Court sent alleged promissory notes along with agreement with specimen signature of respondents for FSL analysis and the opinion of expert in this regard is reproduced as under:
"01- The questioned urdu signatures marked as Q -1,Q-2,and Q -5 on the disputed
documents do not tally with the specimen/routine signatures supplied of Muhammad Ayub.
02- The questioned english signatures marked as Q -3,Q-4 and Q6 on the disputed
documents do not tally with the specimen/routine signatures supplied of Muhammad
Yousaf."
9. The appellant has also failed to prove his resources to establish that he had the
financial position to pay Rs. 10,000,000/ - (Rupees Ten Million) to respondents, the appellant
has not produced any evidence to establish whether he was active tax payer or not? In absence of such evidence, the claim of appellant that he is in the business of importing scrape becomes doubtful; under Section 118 of Negotiable Instruments Act, 1881 (hereinafter "the Act, 1881"). There is an initial presumption that a negotiable instrument is made or drawn, accepted or endorsed for consideration. Although this presumption is rebuttable presumption
but in the case in hand the respondents had straight away denied the execution of alleged
promissory notes, therefore, in our considered view, the appellant had to discharge this initial
burden that the promissory notes had been duly executed and signed by the respondents, the ibid FSL opinion creates serious doubts regarding execution of promissory notes. In "Ghulam Murtaza v. Muhammad Rafi
1"; it is held that presumption under Section 118 of
Negotiable Instruments Act, 1881 was not a conclusive presumption of drawing consideration of a negotiable instrument, rather it was rebuttable in nature and initial burden
of proving that the negotiable instrument was executed against consideration was on the
plaintiff. In this case, the appellant has taken a plea that he had given a loan of Rs.
10,000,000/ - (Rupees Ten Million) to respondents. Considering the facts and circumstances
of the case, the appellant has neither been able to prove payment of Rs. 10,000,000/ - (Rupees
Ten Million) to respondents nor could prove execution of the promissory notes. It is hard to
believe that Rs. 4,000,000/ (Rupees Four Million) in cash were brought to Civil Court and
were handed over to the respondents. The perusal of promissory notes divulges very
important aspect; it is mentioned in the said promissory notes that payment of Rs.
10,000,000/ - (Rupees Ten Million) was made to respondent namely Muhammad Ayub "in
cash"; in the same manner in the second promissory note allegedly executed by Muhammad Yousuf, it is mentioned that he has received Rs. 10,000,000/ - (Rupees Ten Million) "in cash"
and the cheques are not mentioned in the said promissory notes, therefore, the complete
edifice upon which the appellant has built his case stands crumbled. The alleged agreement
dated 28.06.2013 (ExP/4- C) is not notarized in accordance with applicable rules which
creates another doubt regarding its authenticity. So much so, the Oath Commissioner who according to appellant had attested promissory notes and agreement was also not produced
and as mentioned above, the appellant has also failed to prove his source and capacity,
therefore, the presumption contained in Section 118 of the ibid Act stands rebutted.
We have thoroughly gone through the impugned judgment and decree dated 2nd
October, 2021 passed by Additional District Judge -I, Quetta but could not find any infirmity
in reasoning and perversity in interpretation of relevant provisions of law, therefore, the appeal being without any merit is hereby dismissed.
MQ/75/Bal. Appeal dismissed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
let us know.