--O.XXXVII--Suit for recovery--Decreed--Loan facility--Issuance of pronote in favour of respondent--Denial of transaction and issuance of pronote by appellant--Refusal to payment of loan-

 PLJ 2023 Lahore (Note) 143
[Lahore High Court, Multan Bench]
Present: Ch. Muhammad Iqbal, J.
MAZHAR-UL-HAQ--Appellant
versus
MUHAMMAD IFTIKHAR KHAN--Respondent
R.F.A. No. 59 of 2021, decided on 20.6.2023.

Civil Procedure Code, 1908 (V of 1908)--

----O.XXXVII--Suit for recovery--Decreed--Loan facility--Issuance of pronote in favour of respondent--Denial of transaction and issuance of pronote by appellant--Refusal to payment of loan--Sole statement of appellant without any corroborative evidence--Lengthy cross examination was Conducted by appellant but stance of respondent could not be shattered--No categorical version was taken by appellant in his written statement--Appellant has not established his version through any other independent oral and documentary evidence--Mere sole statement of appellant without any corroborative evidence is not sufficient to shatter case of respondent who has established his assertion through oral and documentary evidence by producing marginal witnesses of receipts and pronotes in his evidence--Appellant has miserably failed to prove defensive assertion--Respondent through corroborative and trustworthy oral as well as documentary evidence proved his claim, as such trial Court rightly decreed suit in his favour which just findings do not require any indulgence from this Court--Counsel for appellant has neither pointed out any illegality, material irregularity or misreading of evidence in impugned judgment & decree of trial Court, which does not call for any Interference by this Court in its appellate jurisdiction.

                                                   [Para 4, 5, 6, 7 & 8] A, B, C, D, E & F

Ref. 2006 SCMR 1347, 2007 SCMR 1820, 2020 SCMR 1621,
2021 SCMR 1890.

Malik Muhammad Usman Bhatti, Advocate for Appellant.

Malik Shafqat Raza Thaheem, Advocate for Respondent.

Date of hearing: 20.6.2023.

Judgment

This first appeal under Section 96 CPC is directed against the judgment & decree dated 26.01.2020 passed by the Additional District Judge, Mailsi who decreed the suit for recovery of Rs. 6,40,000/-under Order XXXVII CPC filed by the respondent on the basis of pronotes and receipts.

2. Brief facts of this appeal are that the respondent/plaintiff filed a suit for recovery of Rs. 6,40,000/-under Order XXXVII CPC against the appellant/defendant on the basis of pronotes and receipts contending therein that he does business of sale and purchase of motorcycles. That appellant came to him on 10.04.2012 and asked for loan of Rs. 7,00,000/-in order to fulfill his need of money. Respondent could not arrange the amount in cash whereupon the appellant asked to lend him motorcycles in lieu of money so that after selling the same he could fulfill his monetary needs. As per request of the appellant, the respondent handed over 10 motorcycles, CD-70 against consideration of Rs. 6,40,000/-to the appellant in the Presence of witnesses and in lieu thereof the appellant executed two pronotes alongwith receipts in favour of the respondent. Thereafter the appellant refused to pay the lent amount. The appellant filed contesting written statement denying the transaction and issuance of pronote as well as receipts. The learned trial Court framed issues, recorded evidence of both parties and vide judgment & decree dated 26.01.2020 decreed the suit for recovery filed by the respondent. Hence, this appeal.

3. I have heard the arguments advanced by the learned counsels for the parties at full length and gone through the record with their able assistance.

4. The pivotal issue in this case is issue No. 1 which is reproduced as under:

“Whether the defendant being trust worthy and familiar of plaintiff asked for loan of Rs. 7,00,000/-. The plaintiff could not arrange for Rs. 7,00,000/-whereupon the defendant asked for giving ten (10) motorcycles CD-70 valuing of Rs. 6,40,000/-and the said motorcycles were given by the plaintiff to defendant. Then in order to ensure returned of said loan the defendant has executed pronotes & receipts in favour of plaintiff against the defendant? OPP”

The initial onus of the above issue was upon the respondent who in order to prove his claim as well as to dislodge onus of the above issue himself appeared as PW1 who stated that he is doing a business of sale and purchase of motorcycles in Mailsi City. Defendant Mazhar ul Haq on 10.04.2012 came to him and made a request to lend him a sum of Rs. 7,00,000/-. That as the amount was not available then defendant made a request that he gave him Motorcycles, so by selling the same he could fulfill his need of money. That in the presence of witnesses Dil Faraz and Jehangir the PW handed over ten motorcycles to the defendant valuing of Rs. 6,40,000/-with the term to return the amount within one year till 10.04.2013. For the assurance of repayment of the amount, defendant executed pronotes and receipts as Exh.P1 to Exh.P4 while putting his signatures and imposing the thumb impression alongwith writing of identity card number as well as handed over an affidavit with the promise to return the amount within one year but on the target date he refused to return the said amount. In cross examination, he deposed that he has not paid amount in cash to the defendant Mazhar. Ul Haq. It is correct that he has not written the name of Show room and the motorcycles Honda CD-70 as the motorcycles were zero meters. He purchased the said motorcycles a few days ago from Muhammadi Autos Showroom Honda Agency. He obtained receipt from Muhammadi Autos. He has not appended said receipts with the suit. He gave receipts and letter to the defendant. He purchased motorcycles from the Agency of Hafiz Muhammad Ameen. Defendant came at his shop on his car and he executed two pronotes valuing Rs. 3,20,000/-each with the date of return. Dil Faraz, Muhammad Jehangir and Muhammad Iqbal appeared as PW2, PW3 and PW4 respectively and supported the version of the respondent/ plaintiff. Lengthy cross examination was Conducted by the appellant but the stance of the respondent could not be shattered.

Conversely appellant/defendant as a sole witness appeared as DW1 who stated that he has no relationship with the plaintiff. He neither received any amount nor motorcycles or executed any pronotes bearing his signatures nor issued any receipts. In cross examination, he deposed that:-

مدعی کو نہ جاننے اور محلہ داری وغیرہ کا تعلق نہ ہونے والی بات میں نے جواب دعوی میں لکھوائی تھی۔۔۔۔ نقد موٹر سائیکل یا پیسہ نہ لینے والی بات بھی جواب دعوی میں لکھوائی تھی۔۔۔۔۔ ہر دو پر ونوٹ ہائے و ر سیدات کے ساتھ جو شناختی کارڈ کی کاپی ہیں وہ میرے شناختی کارڈ کی کاپی ہیں۔ درست ہے کہ میرا شناختی کارڈ نمبر 9-5079975-36602 ہے۔ درست ھے کہ ہر دو پرونوٹ ہائے پر شناختی کارڈ نمبر کے کالم میرا شناختی کارڈ نمبر ہی درج ہے۔۔۔ درست ہے کہ میرے خلاف تھانہ سٹی وہاڑی میں مقدمہ نمبر17/ 223بجرمF-489 ت پ درج ہوا تھا۔۔۔۔ درست ہے کہ اس میں میرے اوپر جیپ گاڑی لینے کا الزام تھا۔۔۔۔۔ آج میرے ساتھ کوئی گواہ نہ آیا ھے۔ میں کوئی گواہ پیش نہ کرنا چاھتا ہوں۔

5. The appellant while filing written statement has made evasive denial of the transaction between the parties as well as execution of any pronotes and receipts thereof in favour of the respondent. No categorical version was taken by the appellant in his written statement. Appellant during cross examination admitted the copies of CNIC with the pronotes and receipts Exh.P1 to Exh.P4. The appellant has not established his version through any other independent oral and documentary evidence. Mere sole statement of the appellant without any corroborative evidence is not sufficient to shatter the case of the respondent who has established his assertion through oral and documentary evidence by producing marginal witnesses of the receipts and pronotes in his evidence.

6. Even otherwise, under Section 118 of the Negotiable Instruments Act, 1881 a strong legal presumption of issuance of negotiable instrument (promissory note) against consideration is attached to said document and the appellant was placed under heavier obligation to dislodge said presumption by producing trustworthy corroborative evidence but no defence evidence was available on the record, as such the appellant has miserably failed to prove the defensive assertion. Reliance in this regard is placed on the case titled as Muhammad Arshad and another vs. Citibank N.A., Lahore (2006 SCMR 1347), Muhammad Azizur Rehman vs. Liaquat Ali (2007 SCMR 1820), Najaf Iqbal vs. Shahzad Rafique (2020 SCMR 1621) & Rab Nawaz Khan vs. Javed Khan Swati (2021 SCMR 1890).

7. Respondent/plaintiff through corroborative and trustworthy oral as well as documentary evidence proved his claim, as such the learned trial Court rightly decreed the suit in his favour which just findings do not require any indulgence from this Court.

8. Learned counsel for the appellant has neither pointed out any illegality, material irregularity or misreading of evidence in the impugned judgment & decree of the learned trial Court, which does not call for any Interference by this Court in its appellate jurisdiction.

9. For what has been discussed above, this appeal is hereby dismissed being devoid of any merits with no order as to costs.

(Y.A.)