' This is a suit for the recovery of Rs, 46,893/37 and/or for specific performance. The facts leading to the filing of the above suit are that the plaintiff was an employee of defendant No, 2 for the period commencing from 1st September 1969 to 1st January 1972. It has been averred that the plaintiff while he was in the employment at the personal request and guarantee of defendant No. 1 lent 894 NIT units and Defence Bonds worth Rs, 2,000 face value to the defendants for which receipt dated 1st July, 1970 was executed. It has been further averred that defendant No, 2 owes to the plaintiff his unpaid salary and out of pocket expenses amounting to Rs, 34,612.37, which amount, defendant No, 2 admitted through document dated 31st December, 1971. It has also been averred that defendant No. 1 is liable to return the above units and defence bonds to the plaintiff or in the alternative a sum of Rs, 12,281. On the basis of the above averments the plaintiff has prayed for the delivery of the said NIT units and the defence bonds and a decree of Rs, 34,612.37 or for a decree for a sum of Rs, 46,893.37 with interest thereon from the date of the suit till payment and costs.
2. Defendant No. 1 has filed separate written statement dated 26th April, 1972, wherein it has been averred that the account books of Dacca Office of defendant No, 2 where the plaintiff was posted from the beginning of June, 1969 till the end of June 1970 and where he had withdrawn huge amounts in cash are yet in transit and as such it cannot be definitely said as to what amount, if any, is due to him. It has been further averred that the statement recorded by the plaintiff was signed by the answering defendant because of his friendship with and trust he reposed in the plaintiff at his request to enable him to get an overdraft from his Bank, and that the said statement was never intended to serve as a settlement of acknowledgement of the plaintiff's dues, and that the answering defendant is not bound by the same. However, it has been admitted that the plaintiff lent 894 NIT units and defence bonds of the face value of Rs, 2000. But it has been added that this was done at the suggestion of the plaintiff himself. It has also been averred that the above NIT units and the defence bonds were given on express agreement that as soon as the dues of defendant No, 2 were paid by the principal i. e. Bioket Corporation the overdraft would be written off and the NIT units and Defence Bonds would be returned to the plaintiff and that since the Bioket Corporation has not been able to pay the amount due to defendant No, 2 due to political condition in East Pakistan, the plaintiff is not entitled to ask for the return of the same. On the basis of the above averments defendant No. 1 has denied his liability to pay any amount.
3. Defendant No, 2 has filed written statement dated 26th April, 1972 but subsequently an amended written statement dated 2nd February, 1973 was filed on or about 7th February, 1973. In the above statement the same pleas have been raised, which have been averred by defendant No. 1 in his written statement. However, in addition to that it has been averred that now on scrutiny of the account books which have been received from Dacca, it has been found that the plaintiff has received a; total sum of Rs, 1,41,674.90 inclusive of drawings at Karachi and that whereas he was entitled to receive Rs, 1,29,717.03 only on account of his salary and allowances from September, 1968 when he entered the service of the company till 31st December, 1971 when he left the service of the company. It has been further averred that on the basis of the above figures the plaintiff in fact has overdrawn a sum of Rs, 11,957.87 and nothing is due to the plaintiff from the defendant. It has been further averred that due to fall in the price of the Units the plaintiff is not entitled to Rs, 10,281 claimed by him but is only entitled to an adjustment of Rs, 9,387 and that on account of the price of the units and the face value of the defence bond the plaintiff would be entitled to adjustment of a total sum of Rs, 11,387 and that thus the defendant No, 2 is entitled to recover a sum of Rs, 570/87 from the plaintiff for which defendant No, 2 prays for a decree with costs and interest.
4. The plaintiff has filed a replication to the above counterclaim of defendant No,
2. Wherein various averments made by defendant No, 2 in the said counterclaim have been denied. It has been averred that the plaintiff in fact has claimed on the settlement of the account and that some of the claims made by the defendant are barred by law of limitation. It has been also averred that the plaintiff was not paid salary for a long time and that he used to draw small amounts for his personal expenses and used to inform the Company, and that the plaintiff was sent to Dacca on the work of the company and like other directors including defendant No. 1 according to the practice the lodging expenses club bills and air travel expenses were borne by the company and that the plaintiff has not charged any expense on account of private personal work. It has also been averred that the account books and papers of Dacca Office were regularly sent to Karachi every month and that the Karachi office had in its possession all the documents including the account books in December, 1971 when the accounts were finalised and the company executed the documents annexures A and C to the plaint. It has also been averred that defendant No, 2 was liable to pay ad valorem court-fee on Rs, 47,464.25 in case it wanted to set off or counterclaim. On the basis of the above averments the plaintiff has denied that he is liable to pay any amount to defendant No, 2.
5. On the basis of the above pleadings the following issues were framed :-
(I) Whether a sum of Rs, 34,612.37 is due to the plaintiff as arrears of salary and out of pocket expenses as alleged ?.
(2) Whether the N. I. T. Units and Defence Bonds are returnable to the plaintiff ? If so, to what amount is the plaintiff entitled in lieu thereof ?
(3) Whether the defendant No, 2 is entitled to recover Rs, 570.87 from the plaintiff ?
(4) To what relief if any is the plaintiff entitled ?
(5) Is plaintiff entitled to any relief against defendant No, I as well ? If so to what relief ?" My findings on the above issues are as under :-
6. (a) The above issues can be taken up together as the basic question involved in the instant case is as to whether the documents executed by defendants Nos. 1 and 2 are binding on them.
Mr. Sarwana learned counsel for the plaintiff has invited my attention to Exhs. 5/3 to 6 and has urged that in view of sections 91 and 92 of the Evidence Act, this Court cannot take into consideration any oral evidence A contrary to the contents of Exh. 5/3. On the other hand Mr. S. M.
Sadiq learned counsel for the defendants has urged that the plea taken by the defendants is that Exh. 5/3 was not intended to be acted upon but in fact was given with the object to enable the plaintiff to obtain overdraft facility from a Bank and that the plaintiff obtained the same on misrepresentation. His further submission was that at the time of the execution of Exh. 5/3 the account books of defendant No, 2 Company were not received from defendant No, 2's East Pakistan Office and, therefore, the above document does not reflect the correct account position, but the correct position is reflected in Exh. 6/20 which according to him was prepared after the receipt of the account books from East Pakistan during the pendency of the suit.
(b) It may be observed that Exh. 5 3 is a document dated 31st December 1971 executed by defendant No, 2 through defendant No. 1 certifying that a sum of Rs, 34,612.37 is due from defendant No, 2 to the plaintiff as his unpaid salary earned by him and out of pocket expenses in his capacity as manager constructions for the company for the period commencing from lst November, 1970 to 31st December, 1971 and that the defendant No, 2 undertakes to pay the above amount soon, and that the breakup of the amount is as per attached appendix. According to the above appendix the plaintiff was entitled to a total sum of account of various items mentioned therein Rs, 47,062 whereas he has drawn Rs, 12,450 -thus leaving a balance of Rs, 34,612.37. The above document was executed on the last day of the plaintiff employment with defendant No,
2. On the other hand Exh.
6/20 relied upon by the defenants indicates that the plaintiff was entitled to a total sum of Rs, 1,29,717.03 and whereas a sum of Rs, 1,41,674.90 was adjustable on account of the various items mentioned in the above document.
' If I were to accept the defendants' contention that Exh. 5/3 was not intended to be acted upon. In that event I would be entitled to go into the merits of Exh. 6/20. However, if I hold that Exh. 5/3 reflects the amount due and payable to the plaintiff after the settlement of the accounts between the parties, in my view in that case I cannot ignore the above document nor I can place any reliance on the aforesaid Exh. 6/20 produced by the defendants. It may be observed that Exh. 6/20 has been prepared by the defendant after the filing of the suit. The defendants' plea that above certificate Exh. 5/3 was given to the plaintiff on his misrepresentation in order to facilitate him to avail of the facility of overdraft from any Bank and that it was not intended to be acted upon, does not seem to be plausible. No Bank would have advanced any loan on the basis of the certificate/acknowledgement of a private limited company to the effect that it is liable to pay certain amount to the holder of the certificate/acknowledgement. It may also be observed that prior to the filing of the above suit the defendants did not serve any notice on the plaintiff alleging therein that the above certificate/acknowledgement was obtained by him by misrepresentation or that it was not intended to be acted upon. In my view the above plea set up by the defendants is an afterthought plea in order to overcome the admission/commitment contained in Exh. 5/3.
Appendix enclosed to Exh. 5/3 indicates that the defendants had the relevant accounts at the time when the above document was prepared, as it gives break up of the various items in detail.
(c) Mr. Sarwana has referred to the case of Mohammad Akbar Khan v. Sultan Ghani and others (1), Syed Riaz Ali v. Shabbir Ahmed Khan (2) and {{FOOT NOTE}}
(1) 1970 SCMR 696 (2) 1971 SCMR 598 {{FOOT NOTE}} the case of WeSt Pakistan Industrial Development Corporation v. Fateh Textile Mills Ltd. (1). The above cases lay down that no evidence can be led in contradiction of the contents of a document.
There can be no cavil to the above D proposition of law but what was urged by Mr. Sadiq was that the document Exh. 5/3 was not intended to be acted upon. If I would have accepted the above contention of Mr. Sadiq, learned counsel for the defendants sections 91 and 92 of the Evidence Act would have no application to the instant case.
' In view of the above discussion I am, therefore, of the view that defendant No, 2 is liable to pay a sum of Rs, 34,612/37 to the plaintiff on account of his salary and other allowances.
(d) Reverting to the plaintiff's claim of 894 NIT units and the Defence Bonds of the face value of Rs, 2,000, it may be observed that it has been urged by Mr. Sarwani that the value of the bond by now would have been double i. e. Rs, 4,000 and that the plaintiff has claimed the price of 894 NIT units at the market rate prevalent at the time of the filing of the suit, namely, Rs, 10,281 at Rs, 11.50 per unit.
On the other hand, it has been urged by Mr. Sadiq that the plaintiff is entitled to claim the price of the aforesaid units at the rate prevalent on the day when the defendants refused to deliver back the aforesaid units. It may be observed that defendant No, 2 in para. 8 of its written statement has averred that due to the fall in the price of the units the value of the aforesaid units comes to Rs, 9,387. The above written statement was filed, as pointed out by me earlier, on 7th February, 1973 whereas the present suit was filed on 25th February.
1972. It may also be observed that in para. 8 of the above written statement. It has riot been averred by defendant No, 2 that at the time of the filing of the suit or at any other point of time prior to the filing of the suit the value of the aforesaid units was not Rs, 10,281. In this view of the matter I am inclined to hold that the plaintiff is entitled to recover the amount mentioned in the plaint, namely, Rs, 10,281. It may be pertinent to mention that defendant No. 1 has given his personal guarantee Exh..5/6 for the defence bonds and NIT units, and, therefore, he is also personally liable for the price of the bonds and the units.
7. In view of the above discussion, my findings on issues Nos. 1 and 2 are in the affirmative, whereas on issue No, 3 in the negative. Furthemore, my findings on issues Nos. 4 and 5 is that the plaintiff is entitled to a decree as mentioned hereinbelow.
' I, therefore, pass a decree for a sum of Rs, 46,893.37 against defendant No, 2 with 9% simple interest thereon, from the date of the suit till payment and costs. However, defendant No. 1 shall be liable jointly and severally with defendant No, 2 to the extent of Rs, 12,281 with 9% simple interest thereon from the date of the suit till payment and proportionate costs on the above amount. {{FOOT NOTE}}
(1) PLD 1968 Kar. 812 {{FOOT NOTE}} Suit decreed