' This order shall dispose of R.F.A. No.52/2002 (Mian Muhammad Asif v. Muhammad Riaz) and R.F.A No.120/2002 (Muhammad Riaz v. Mian Muhammad Asit) as both the appeals are outcome of the same judgment dated 6-12-2001 passed by the learned Additional District Judge, Lahore.
2. The brief facts of the case giving rise to these appeals are that Muhammad Riaz, respondent filed a suit under Order XXXVII, rule (2) of Code of Civil Procedure for recovery of an amount of Rs.4,72,000, and the further interest thereon against Mian Muhammad Asif, appellant, claiming that the parties had good personal relations inter se, and they also knew one Azam Khalil who had advanced an amount of Rs.2,00,000 as loan to Mian Muhammad Asif, appellant (defendant in the suit). And was demanding the amount. On 10-9-1994, appellant Mian Muhammad Asif approached the complainant/respondent and borrowed Rs.2,00,000 to clear the loan of Azam Khalil with a promise to pay back the same after two months. It was also agreed that he would pay an interest of Rs.4,000, per month per Rs.1,00,000, till the return of loan which comes to Rs.8,000, per month for Rs.2,00,000. The appellant received the amount and also paid Rs.8,000, per month as interest for the months of October, 1994 and November, 1994. On demand raised by the defendant/respondent, the appellant failed to return the amount as per his promise on the pretext that he is facing financial problem/hardship but undertook to keep on paying interest amount of Rs.8,000 per month till he returns the amount. The appellant stopped the payment of interest w.e.f.
January, 1995. He neither paid the principal amount nor the interest due for whole of the year 1995 and first seven months of 1996. The respondent /plaintiff approached the appellant who started paying the interest w.e.f. August, 1996 and continued to pay till April, 1997. Thereafter, he again stopped the payment of interest w.e.f. May, 1997. On demand the appellant issued cheque of Rs.2,00,000, drawn at Bank of the Punjab Sadiq Plaza, Shahra Quaid-e-Azam, Lahore and the same was presented on 16-7-1997 but it was not encashed. The cheque was again presented on 5-12- 1997 but it was not encahsed due to non-availability of the amount and the suit was filed claiming decree for Rs.2,00,000 as well as interest @ Rs.8,000, per month from the appellant. The suit was contested by the appellant taking preliminary objections as well as on merits and out of the divergent pleadings following issues were framed:--
(1) Whether the plaintiff is entitled to recover Rs.4,72,000, along with interest? OPP.
(2) Whether the suit is not maintainable in its present form? OPD.
(3) Whether the suit is barred by limitation? OPD.
(4) Whether the plaintiff has not come to the Court with clean hands? OPD.
(5) Whether the suit is frivolous, vexatious and mala fide? OPD.
(6) Relief.
' The parties led their evidence and the plaintiff/respondent examined Mujahid Munir Malik as P. W.1, who stated that he along with plaintiff visited the defendant for recovery of the amount and he was sent to collect amount of three cheques each for Rs.8,000 on different occasions. Muhammad Riaz plaintiff himself appeared as P.W.-2 and supported his claim as per averments made in the plaint.
He also examined Shahid Sharif, Manager, Bank of the Punjab, Sadiq Plaza Branch (P.W.-3) who stated that cheque P.1 was presented in his Branch on 15-7-1997 which was dishonoured.
Thereafter, again it was presented on 4-12-1997 but again was dishonoured. He also proved the statement of A/C No.CD515XP2/1-2. Muhammad Saqib Nasim was examined as P.W.4 who stated that the appellant/defendant had to pay Rs.2,00,000 to Muhammad Riaz, respondent/plaintiff and he had relation with both of them and due to his intervention for settlement of their dispute in May or June, 1996 a meeting was held wherein Mian Muhammad Asif in presence of his one friend Iftikhar acknowledged liability of Rs.2,00,000, towards the plaintiff/ respondent but explained that he could not make the payment because he being jobless and undertook to keep on making the payment of Rs.4,000 per month per Rs,1,00,000 in future Nadeem Abdullah, P.W.-5 was bank official of Al-Falah Bank Limited and he stated that a cheque bearing No.023453 dated 15-7-1997 (P.1) was presented in his branch on 16-7-1997 but the same was not encashed and was returned for the reason "not arranged for" Again it was presented on 5-12-1997 but it was not encashed and this account was in the name of Mian Muhammad Asif, appellant. Muhammad Arshad Sheikh, Manager of the Punjab Bank, Abid Majeed Road Branch, Lahore appeared as P.W.6. He stated that the cheques issued were relatable to account to Mian Muhammad Asif were encahsed and amount transferred to Bank of the Punjab, Sadiq Plaza Branch and he proved the cheques P.3 and P.4 placed on record. The plaintiff/respondent produced in support of his claim P.1 to P.5 in rebuttal.
3. From the defendant's side, Mian Muhammad Asif himself appeared as D. W.1 controvert the claim of the respondent/plaintiff and denied having borrowed an amount of Rs.2,00,000, from the plaintiff/respondent. He also denied having received any legal notice from the respondent or ever issued any cheque in favour of the respondent/plaintiff. He examined Muhammad Ifzal as D.W.2 who stated that in his presence Muhammad Riaz, plaintiff never approached the appellant/ defendant for recovery of the amount. Aamer Nazir appeared as D.W.3 who also stated that plaintiff never established contract with the defendant in his presence.
4. Learned trial Court after hearing the arguments of the parties decreed the suit to the extent of Rs.2,00,000. However, the claim of interest of the plaintiff was dismissed while deciding issue No.1 with the observation as under:-- "The upshot of the above discussion is that the plaintiff has successfully discharged the onus of this issue through cogent, reliable and unimpeachable, oral as well as documentary evidence. The issue is thus answered in affirmative, to hold that the plaintiff was entitled for the recovery of Rs.2 lacs as principal amount. However, he could not be held entitled for the recovery of interest thereof, since interest has been declared as unIslamic by Hon'ble Supreme Court of Pakistan."
' Aggrieved of the judgment both the parties have assailed the same through their respective appeals.
5. Mr. Ali Akbar Qureshi, learned counsel for appellant/defendant Mian Muhammad Asif has argued that the lower Court below failed to appreciate the evidence produced by the appellant, therefore, the impugned judgment is based on misreading and non-reading of evidence. He has further argued that under Negotiable Instruments Act no notice was issued by the respondent/plaintiff before filing of the instant suit; that the learned trial Court has not discussed the evidence in toto and has also failed to appreciate the documentary evidence of the parties brought on record.
6. The appeal has been opposed by Mr. Shahid Bilal Hassan, learned counsel for the respondent/plaintiff Muhammad Riaz.
7. In support of his own appeal, learned counsel for respondent/plaintiff has argued that the trial Court has not given any valid reason for dismissing the claim to the extent of interest agreed between the parties to be paid by Mian Muhammad Asif, appellant /defendant and under the law the respondent/plaintiff was entitled for the interest due on the amount.
8. We have heard the learned counsel and examined the record.
9. The main contest between the parties revolves around the finding on issue No. 1 . The plaintiff had proved that cheque P.1 issued for Rs.2,00,000, was relatable to A/C No.023453 which was presented for the first time on 15-7-1997 but same was not enashed. It was again presented on 4-12-1997 but met the same fate. Mere denial by Mian Muhammad Asif for having issued cheque is not enough to rebut the claim of respondent/plaintiff. It has been proved that the cheque for Rs.2,00,000 issued by him was relatable to his account. Cheque was bounced due to non-availability of amount in the account and not because of signature of the account holder. Shahid Sharif, P.W.3 admitted in his cross-examination that he was not aware that for whom two cheques were issued by Mian Muhammad Asif, appellant. P.W.4 Muhammad Saqib admittedly was not witness of the earlier agreement when the appellant borrowed amount of Rs.2,00,000, from the respondents or terms of the agreement regarding rate of interest. The appellant has denied having issued any cheque in favour of the defendant, but after perusal of the evidence we find that the issuance of cheque of Rs.2,00,000, by the appellant has been duly proved by oral as well as documentary eyidence. The cheque was presented but was not encahsed, therefore, we find that finding of the learned trial Court on Issue No.1 to the extent of amount of Rs.2,00,000, on the basis of cheque P.1 is borne out from the record and do not find any reason for interference in finding on Issue No. 1.
10. Mere issuance of two cheques each for Rs.8,000 does not prove that there was any agreement of payment of interest on the amount borrowed by the appellant. Even if it is accepted, the rate of interest (Rs.8,000 per month on Rs.2,00,000) appears to be very high and unbelievable which is also against the public policy being disproportionate to the amount borrowed and has also not been proved through convincing evidence. Therefore, apart from the reason given by the learned trial Court, we find that the claim for recovery of interest has not been proved and find no force in R.F.A.
No.120 of 2002 warranting interference in the well-reasoned judgment, so both the appeals are dismissed with no order as to costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.