' NADEEM AZHAR SIDDIQI, J.--- The plaintiff has filed this suit for recovery of Rs,48,16,670 with cost of fund on delayed payment.
2. Brief facts necessary for disposal of the above case are that the plaintiff is a public limited company engaged in the business of manufacture of motorcycles and parts and accessories thereof. Through an oral agreement the plaintiff appointed the defendant as its dealer and, thereafter, reduced the same in writing on 1-10-1995 for sales of its products. Simultaneously, the defendant also executed memorandum of payment (credit) sales and the parties opened a joint running account to regularize the accounts between themselves. The joint running accounts of debit and credit were maintained from 28-9-1995 upto 31-5-2003 on which date the defendant made payment of Rs,40,000 but thereafter he defaulted in payment on one pretext or the other. As such, on 31-5-2003 a sum of Rs,48,16,670 was outstanding as principal amount against the defendant. In January, 2004 the defendant negotiated settlement with the plaintiff and delivered four cheques, each for Rs,1,000,000 (Rupees ten lacs) to the plaintiff. However, when the cheques were presented for payment the same were dishonoured and returned with the endorsement "A/c closed". The plaintiff contacted the defendant and informed him about the dishonoured cheques but the defendant failed to pay any heed and till date has not paid any amount towards its outstanding dues. Therefore, the plaintiff filed the present suit with the following prayer:-- "It is therefore prayed that this Honourable Court be pleased to pass judgment and decree against the defendant and in favour of plaintiff:-
(a) for Rs,48,16,670 the principal amount plus Rs,5881352.00 worked out at 2% per month from 30-11- 2000 to 31-12-2005 and future cost of funds on delayed payments at the same rate from 1-1-2006 to till the amount claimed in the suit is recovered from the defendant.
(b) Cost of the suit."
3. The summonses of the suit issued to the defendant were returned unserved with the endorsement that the defendant has shifted from the given address. Thereafter, summonses were issued to the defendant through District Judge, Sahiwal which were returned with the endorsement that the defendant refused to accept the same. Accordingly, the plaintiff was directed to take necessary steps to get the defendant served. The plaintiff therefore filed an application under Order V, Rule 20, C.P.C. Praying to serve the defendant by way of publication which was allowed and the plaintiff was directed to publish notice in daily "Jhang" Lahore and all modes. Accordingly, notice was published in the daily "Jang" Lahore dated 6-2-2007 and was also issued to the defendant through courier service and by registered post/AD as well as a copy of the notice was pasted at the last known address of the defendant. Accordingly, vide order dated 16-3-2007 of the AR(OS) service was held good and the matter was ordered to be fixed in Court. Vide order dated 23-4-2007 this Court ordered this matter to proceed ex parte against the defendant and further that the question of territorial jurisdiction would be decided at the time when the matter is listed for final disposal.
4. I have heard the learned counsel for the plaintiff. None appeared on behalf of the defendants.
5. It may be pointed out that initially this suit was filed by "Suzuki Motor Cycles Pakistan Limited" but on 24-12-2007 learned counsel for the plaintiff sought permission to file amended title as vide order dated 17-9-2007 passed by this Court in J.M. No,14 of 2007, Suzuki Motor Cycles Pakistan Limited was merged in Pak Suzuki Motor Company Limited. Permission was granted vide order dated 6-2- 2008 and accordingly amended title was filed which was taken on record on the same date. Thus, the original plaintiff was replaced by Pak Suzuki Motor Company Limited.
6. On 13-2-2008, Riaz Hussain son of Ali Bhai, authorized officer of the plaintiff, filed affidavit-in ex parte proof and on 10-9-2008 his examination-in-chief was recorded since no one was present on behalf of the defendant to cross-examine the witness, cross-examination was recorded as "Nil". On 23-12-2008 learned counsel for the plaintiff submitted his arguments. During the course of the arguments, learned counsel for the plaintiff submitted that the plaintiff supplied various items manufactured by it to the defendant on credit basis. The defendant on 31-5-2003 paid a sum of Rs,40,000 to the plaintiff but thereafter did not make any payment against various sales invoices produced during the evidence and also filed with the plaint. Learned counsel for the plaintiff placed on record the original cheques along with memorandums of the bank showing that the same were dishonored with endorsement "A/c closed". He referred to Exhs. P/6, dated 21-4-2003 entitled "Balance Conformation", whereby the defendant admitted his liability as of 31-3-2003 at Rs,4,856,670. The learned counsel further submits that the plaint, the affidavit-in-ex-part-proof and the examination-in-chief of the plaintiffs witness are on oath and there is nothing in rebuttal.
7. This is a suit for recovery of money. In order to discharge its burden of proof, the plaintiff has to show that it has provided goods on credit to the defendant and the defendant has failed to make payment against the same. In order to prove its case, the plaintiff has produced sufficient material to show that goods were provided to the defendant who has failed to settle accounts. In this connection the plaintiffs witness had produced the dealership agreement, computerized statement of account, various sales invoices, delivery challans, balance confirmation dated 21-4- 2003 and the dishonoured cheques along with memorandum of the bank. These claims of the plaintiff have gone unrebutted. Similarly, the affidavit-in ex parte proof filed by the plaintiff No,1 has also gone unrebutted as the defendants neither cross-examined the witness of the plaintiff nor produced his evidence in rebuttal. The dishonoured cheques issued by the defendant also establish that the defendant is liable to pay the amount to the plaintiff. The cheque is a negotiable instrument and there is rebuttable presumption that every negotiable instrument is made, drawn, accepted and endorsed for consideration. The defendant has not come forward to rebut the presumption.
8. On 23-4-2007, when the matter was directed to proceed ex parte against the defendant, it was also ordered that the question regarding territorial jurisdiction of this Court to try the subject suit will be decided at the time of hearing of the suit for final disposal. In this connection I have perused the Dealership Agreement executed between the parties, clause 24 whereof clearly states that "Courts in Karachi will have jurisdiction with respect to all matters covered by this Dealer Agreement to the exclusion of all other Courts." From the agreement between the parties it also appears that the same was executed at Karachi and the plaintiff has received information regarding dishonour of the cheques at Karachi. A suit for recovery of amount can be instituted in a Court in whose jurisdiction the cause of action, wholly or in part, arises. Thus, it is clearly established that the Courts at Karachi have jurisdiction to try the instant suit. The question of territorial jurisdiction is answered accordingly.
9. In view of the above, I am of the view that the plaintiff has proved its case and is entitled to the relief prayed for. Accordingly, this suit is decreed in the sum of Rs,48,16,670 with interest @ 10% per annum from the date of the suit till the realization of the amount with cost.
10. Office is directed to prepare the decree in the above terms.