CH. MUHAMMAD TARA J. --- This RFA has been directed against judgment and decree dated 14.03.2005 passed by learned Additional District Judge, Lahore who decreed the suit of the respondent.
2. The cause of action as given in the RFA is that the respondent filed suit under Order XXXVII of CPC for the recovery of an amount of Rs. 10,64,920 alleging that he in association with one Khawaja Akram imported Baby Diapers from abroad and for marketing thereof appointed M/s. Moon Marketing owned by the appellants-defendants as agent and delivered 828 cartons valuing Rs.
15,64,920/- for storage and display. The appellants gave cheques wroth Rs. 4 lacs to them and as a security for the entire payment, appellant No. 1 i.e. Nadeem Kamran on behalf of his firm executed and delivered to the respondent a promissory note dated 04.06.2001 for Rs. 15,12,000/-. The cheques were presented and amount of Rs. 3 lacs was cashed while the cheque for Rs. 1 lac was dishonoured. The respondent under the apprehension that the appellants had misappropriated the stock, got registered an F.I.R. No. 4 of 2002, dated 06.01.2002 against the appellants, one Akbar All and Dr. Qaisar. The appellants made payment of Rs. 2 lacs further in cash and balance amount of Rs. 10,64,920/-remained unpaid. The respondent finally prayed for the decree for an amount of Rs.10,64,920/-.
3. The appellants/defendants submitted an application for leave to defend which was allowed and they submitted their written statement wherein certain preliminary objections with regard to the maintainability and competence of the suit, lack of jurisdiction of the Court, status of promissory note was also challenged on the ground that promissory note was for the settlement of the accounts and the respondent at the best could resort to file the suit for rendition of accounts were raised. It was also pointed out that defendant No. 2 i.e. Shahzad Kamran was not signatory of the Pronote. It was also alleged that promissory note was incomplete because the same was executed as a security, the same was filled by the respondent to achieve his illegal goal with mala fide intention and ulterior motives.
4. Out of divergent pleadings of the parties, the issues were framed. After recording of oral as well as documentary evidence of the parties, the learned Trial Court vide order dated 14.03.2005 decreed the suit of the respondent-plaintiff. Hence this RFA.
5. Learned counsel for the appellants contends that the promissory note was executed by the appellants just as a security/business deal and not as a cash deal, as such, the suit under Order XXXVII, C.P.C. Filed by the respondent was not maintainable. In fact, the matter between the parties is of rendition of accounts. The promissory note is ex facie doubtful which has been filled in by the respondent himself according to his own choice. The findings of learned Trial Court we not based on cogent reasons and the impugned judgment is the result of misreading and non-reading of evidence, therefore, this RFA be accepted, the impugned judgment be set aside and the suit of the respondent be dismissed with costs throughout.
6. Conversely, learned counsel for the respondent has vehemently opposed this RFA and has supported the impugned judgment and decree of the learned Trial Court.
7. Arguments heard. Record perused.
8. The main contention of learned counsel for the appellants is that the promissory note was executed by the appellants as a security and suit under Order XXXVII, C.P.C. Filed by the respondent was not maintainable and for recovery of the disputed amount, the respondent ought to have been filed suit before an ordinary Civil Court, we do not agree with the contention of learned counsel for appellants which is totally misconceived because Section 4 of the Negotiable Instruments Act provides that:- "4. A "Promissory note". A "promissory note" is an instrument in writing, (not being a bank-note or a currency-note containing an unconditional undertaking, signed by the maker, to pay on demand at a fixed or determinable. Future time a certain sum of money only to or to the order of, a certain person, or to the bearer of the instrument."
9. In order that a document should be a promissory note, following conditions have been set forth:- -- "(i) an unconditional undertaking to pay: (ii). The sum should be a sum of money and should be certain:
(iii) the payment should be to, or to the order of, a person who is certain, or to the bearer of the instrument:
(iv) and the maker should sign it. If these four conditions are present a document becomes a promissory note.
10. The execution of the promissory note is not denied by the appellants. The contention of learned counsel for the appellants that since the appellants did not receive the amount in cash, therefore, the promissory note is not a valid document and the same does not fall within the scope of promissory note is incorrect as a promissory note is mere a promise to pay a certain amount at a certain time. The definition provided under Section 4 of the' Negotiable Instruments Act and the conditions laid down therefore fully establish that the Exh. P1 is a promissory note and the appellants are obliged to honour their promise.
11. Record further highlights that the appellants have himself admitted in the RFA that the respondent-plaintiff supplied 828 cartons of baby diapers valuing about Rs. 15 lacs and it was agreed to make payment of these diapers after their sale, as such, Mark-A was executed between the parties as a security in favour of the respondent. The plaintiff has admitted the payment of Rs. 5 lacs while Rs. 10,12,000/- are outstanding against the appellants. The judgment and decree passed by learned Trial Court is based on cogent reasons. Learned counsel for the appellants has badly failed to point out any illegality, infirmity, mis-reading or non-reading of evidence in the impugned judgment calling interference by this Court.
12. As a consequence of above discussion, this RFA being devoid of merit is dismissed. RFA dismissed.