' SALMAN HAMID J.---Present Suit under the Summary Chapter of the Code of Civil Procedure 1908 has been brought by the plaintiff upon dishonour of a Cheque bearing No,0953719 dated 28-10- 2008 drawn on UBL, Molvi Musafir Khana Branch, Karachi amounting to Rs,3,500,000 issued by the defendants headed for settlement of partnership account that existed between them past to its dissolution.
2. The case of the plaintiff was that at the start a partnership was established between the plaintiff and defendants in which both the parties were equivalent partners and stash were also made by them equally. The plaintiff was a sleeping partner, whereas the defendants were active partneRs, In terms of the partnership, the plaintiff was entitled to equal profits and losses in the partnership business. The defendants having failed to make the payment of the profits and/or having accounted for the same, the plaintiff in the first instance claimed amount of profits from the partnership firm; thereafter caused various notices in respect thereof which were responded to by the defendants in all of which it was essentially stated that since partnership did not inaugurate, the plaintiff was not entitled to any profits and, at best, the amount that was invested by the plaintiff in the partnership business, which according to the defendants were only to the extent of Rs,1,000,000 would be returned in character of an amount of Rs,2000 per day. According to the plaintiff, the defendants having failed to make any payment of the profits and upon his insistence, for the same, the defendants in order to keep the plaintiff in indeterminate state, issued. Above cheque towards full and final settlement of partnership account which cheque, upon staging not once but twice was bounced with the remarks funds not sufficient' and thereafter the present Suit was filed for recovery of the outstanding amount.
3. The defendants filed their leave to defend application wherein it was argued that since the partnership was never established for want of full amount of outlay at the instance of the plaintiff, the same came to an end and/or automatically stood dissolved; that the cheque was managed by the plaintiff inasmuch as that one of the cheques slips from defendants cheque book was stolen by the plaintiff through his relative who was employed with the defendants and was filled in subsequently and was presented to the bank for its sum and that the plaintiff having stolen such cheque slip, phoney his signature on it committed offences under sections 392, 408 and 467, P.P.C.
And that nothing was owed and payable by the defendants to the plaintiff. It was also argued that upon filing of Suit No,1241 of 2008 before IIIrd Senior Civil Judge and Judicial Magistrate, Karachi, South, by the defendants, the plaintiff in his written statement never mentioned about the above cheque and for that reason, on the face of it, it became clear that the cheque was managed by him all the way through unlawful and illegal means and in the end it was argued that nothing was due and payable by the defendants to the plaintiff, therefore, the present suit be dismissed; alternately defendants be granted leave to defend the Suit. In support of his contentions, the learned counsel for the defendants relied upon the precedents as reported in 2001 CLC 653, Asif Nadeed v. M/s. Bexshim Corp, 2009 CLC 1123 Naveed Haider v. M/s Noma: Abid Co. Ltd and PLD 2010 Lahore 219, Muhammad Ali Nawaz and 3 others v. Sh. Muhammad Aslam.
4. In confutation to the above arguments, the learned counsel for the plaintiff stated that written statement in the suit that was favoured by the defendants before the Civil Court was filed on 31-1- 2009, wherein it was distinctively mentioned that no harassment or intimidation had been caused by him to the defendants herein/plaintiff there and that it was also downrightly mentioned that the plaintiff herein would espouse legal recourse for redress of his grievances, whereafter that suit was dismissed. It was also pointed out by the learned counsel for the plaintiff that record of the file would show that F.I.R. No,34 of 2009 was lodged after dishonour of the cheque on 12-1-2009 at Police Station Saddar, Karachi against the defendants and therefore, there was no occasion for him to have veiled anything from the court. In this regard learned counsel for the plaintiff cited the case of Tahir Hassan Choudhery v. Shahid Ahmed Khan, reported in 2006 CLC 640.
5. Heard arguments.
6. Though in the leave to defend application the defendants have emphatically stated that the cheque was stolen but conspicuously date of pilfer of such cheque slip was not mentioned and even though allegation of commission of offences under sections 392, 408 and 467, P.P.C. Had been levelled against the plaintiff, upon an enquiry, it was informed by the erudite counsel for the defendants that till date no F.I.R. Was lodged or any other action in respect of such offence was taken by the defendants.. It was also mentioned by the learned counsel for the defendants that no case till date for annulment of the cheque has been filed before any court of law, having sway in the same. No epistle or relevance was also sent to the bank, in respect of larceny and/or misplacing of cheque slip, which leads to believe that the defence was made up. In leave to defend application, being of partnership between the plaintiff and defendants was not disputed or denied.
As a matter of fact, it was categorically mentioned in the leave to defend application that there was in existence partnership of the plaintiff and defendants and because of plaintiff's failure to make entire venture in the partnership, it came to an end/dissolved automatically. The record of the file would show that in the notices those were exchanged between the plaintiff and defendants it was categorically mentioned by the defendants that account would be settled between the parties with regard to the profit and loss sharing thereof from which the defendants attempted to wriggle out. In the leave to defend application various other allegations were made by, the defendants against the plaintiff which amongst others also included that certain cheques were issued by the plaintiff in favour of the defendants which upon presentation had been dishonoured.
However, interestingly, the defendants have failed to bring on record such dishonoured cheques.
Not only this, they also failed to demonstrate that any proceedings under summary chapter had been initiated by the defendants upon sully of such cheque.
7. Above defence of the defendants would show nothing but the fact that indeed there was a partnership in existence between the plaintiff and defendants and under such partnership profits and losses were to be shared equally and in fact the defendants having agreed to make payment of Rs,2000 per day to the plaintiff shows that prior in time no amount of profit was made. From the record it also transpired that defendants made attempts by telephoning the plaintiff on various dates for settlement of the accounts which however were never paid. It seems that in order to put on time and/or to make the plaintiff running from pillar to post, the cheque under point, was issued to him.
8. Though in the leave to defend application it was mentioned that the cheque was never issued by the defendants which means that it was never signed by the defendants but interestingly, it would be noted from the memorandum of the bank whereby the cheque was returned on two occasions that the funds were not sufficient and not that the "drawer's signature differs". Thus the memorandum in itself shows than there was no row with regard to the signature of the defendants on the cheque but had been returned for want of means. The only plausible and logical conclusion that can be drawn is that indeed the cheque was issued by the defendants to the plaintiff under valid signatures. Had there been any dissimilarity or sham on the signatures, the memorandum would have stated so, which in the present case was not.
9. Mere disputing the amount envisaged in the cheque or cheque itself would not entitle the defendants for leave as impact of Order XXXVII, C.P.C. Is to curtail full trial of the suit. In the present case the defendants having failed to launch that he was entitled to grant of leave to defend the suit, the same is dismissed inasmuch that the defence which was advanced byb defendants shows that it was nothing but an attempt to prolong the upturn proceedings which even otherwise on the face was fabricated and was nothing but an eye wash. The object of summary procedure having been achieved by the plaintiff needs to be efficaciously remedied and no prolong commercial litigation is required since admission of partnership and its dissolution subsequently is also admitted and also the fact that cheque had been dishonoured, for want of adequate funds and not because of falsification of signatures of the defendants. Three citations relied upon by the defendants are of no assistance as in those precedents, case of leave was made out which is not even remote in the present submission.
10. I having come to the conclusion that there exists no fair dispute to be tried, dismiss the leave to defend application and decree the suit of the plaintiff in the sum of Rs,3,500,000 (Rupees Three million and Five Hundred Thousand only) with interest at the rate of 6% per centrum per annum as provided under sections 79 and 80 of the Negotiable Instruments Act, from date of dishonour of the cheque until tender or realization of the amount due.