1. NADEEM AZHAR SIDDIQI, J. - The plaintiff initially filed this suit under Order XXXVII, Rule 1, CPC on the basis of promissory note dated 25.2.1998 allegedly executed by the defendant against consideration of Rs. 70,00,000/-. Along with the plaint photo-copies of the promissory note, receipt and letter of undertaking were filed. The claim of the plaintiff is that the defendant is his old friend and in February, 1998 approached him with a request for a loan of Rs. 70,00,000/-. The plaintiff paid the said amount on execution of demand promissory note dated 25.2.1998 which was delivered to him as security for the repayment of loan, It was further stated in the plaint that in spite of repeated demands made by the plaintiff and the promises made by the defendant from time to time the defendant failed to pay the loan amount hence a Jirga was called and in presence of Jirga Letter of Undertaking dated 18.12.2000 was executed by the defendant. The defendant in spite of undertaking failed to pay the amount. On 22.7.2003 the plaintiff met with the defendant and asked him to pay the amount. The defendant refused to pay the amount, hence the suit was filed.
2. After filing the suit summons under Summary Chapter were issued to the defendant who filed application under Order XXXVII, Rule 3, CPC (CMA No. 4814 of 2003) to which the plaintiff filed his counter-affidavit, In the application apart from other pleas it was stated that promissory note is not sufficiently stamped and some stamps appearing on the promissory note had not been cancelled, It was also stated in the said application that Annexure 'A' to the plaint (Promissory Note) is a forged document. This application came-up for hearing on 24.5.2004 and was dismissed in non-prosecution. A restoration application being CMA No. 3918 of 2004 was filed and the same was also dismissed on 5.9.2005 for non-prosecution. Thereafter, the suit was fixed for final disposal on 2.11.2005. While hearing the case on 2.11.2005 I have noticed that several revenue stamps appearing on the backside of promissory note were properly cancelled.
3. After hearing the learned counsel for the plaintiff, vide order dated 9.12.2005 the suit was converted from short cause to long cause and office was directed to issue fresh summons to the defendant in ordinary cause. The office issued fresh summons which was served on the defendant on 20.2.2006 but neither the defendant made appearance nor filed his written-statement and was declared ex parte on 22.5.2006.
4. The plaintiff has already placed on record the original promissory note, receipt and letter of undertaking along with his affidavit dated 8.10.2005. The plaintiff has also filed fresh affidavit dated 22.5 2005 and affidavit of Noor Muhammad who is the witness of promissory note as well as letter of undertaking. The plaintiff by producing the originals promissory note, receipt and letter of undertaking proved that he had paid an amount of Rs. 70,00,000/- to the defendant as loan. The defendant has not filed any defence and failed to show that the amount of Rs. 70,00,000/- has been repaid by him to the plaintiff. The witness of the plaintiff Noor Muhammad in his affidavit has submitted that in his presence the plaintiff paid an amount of Rs. 70,00,000/-,to the defendant who had executed and delivered to the plaintiff promissory note dated 25.2.1998. And receipt of the said amount. He further submitted that in his presence on 18,2.2000 the defendant has admitted his liability and in his presence executed and delivered to the plaintiff an. Undertaking dated 18.12.2000.
5. The plaintiff by producing the original receipt of Rs. 70,00,000/- dated 25.2.1998 and letter of undertaking dated 18.12.2000 and by producing the witness Noor Muhammad has proved the advancement of loan of Rs. 70,00,000/- to the defendant independent of the pronote, In this case since the pronote is not properly stamped it was not considered as pronote but the said pronote is sufficient to prove that payment was made to the defendant. The above evidence remained unrebutted and is sufficient to prove that the defendant has obtained the amount of Rs.
6. 70,00,000/-. In absence of any defence I have no option but to accept the claim of the plaintiff that the above amount is still due and payable by the defendant to the plaintiff.
7. In view of above the suit of the plaintiff is decreed in the sum of Rs. 70,00,000/- only with mark-up @ 6% per annum from the date of the suit till realization of amount with no order as to costs.
8. The office is directed to prepare the decree in the above terms.