' SYED MUHAMMAD FAROOQ SHAH, J.--- Muhammad Akhtar Javed, the respondent has filed Suit No, 63 of 2010, against the appellant Arab Khan, under Order XXXVII, Rule 2, C.P.C., for recovery of Rs,9,00,000, on the basis of promissory note executed by him on 21-10-2006, and has failed to repay the same on demand. The appellant preferred the captioned appeal against the judgment and decree dated 6-10-2010 and 9-10-2010 respectively, passed by the District Judge, Karachi (East).
2. Precise relevant facts as averred in the pleadings of both parties are that appellant had executed a promissory note, after receiving an amount of Rs,900,000 in presence of witnesses' and in failure to pay the same on demand by the appellant, a legal notice was also served upon him. In his written statement, the appellant has stated that the said promissory note does not fulfil the ingredients of promissory note and does not come within the definition of.Summary suit. He has also denied the execution of it and submitted that the same is a fabricated document; that the appellant has returned the loan of Rs,3,75,000 out of loan amount of Rs,9,00,000 and balance remains to be, paid is Rs,5,25,000 which he' is ready to pay after settlement of rent amount as rent is outstanding against the respondent. From pleadings of the parties, the following issues were settled:--.
(1) Whether the suit of the plaintiff is not maintainable in Law?
(2) Whether the plaintiff issued loan of Rs,9,00,000 to the defendant or not ?
(3) Whether the defendant has executed promissory note after receiving of friendly loan amount of Rs,9 Lacs from the plaintiff?
(4) Whether the plaintiff re-issued another loan of Rs,4,75,000 as alleged to the defendant or not?
(5) Whether the defendant is liable to pay any amount to the plaintiff or not?
(6) Whether the plaintiff is entitled for relief which he has claimed?
(7) What should the decree be?
3. At trial, both the parties examined themselves and produced necessary documents, including the said promissory note as Exh.6-A. On conclusion of evidence adduced by both the sides, the learned trial Court decided the Issue No,1 in negative, Issues Nos.2 and 3 in affirmative and by deciding Issues Nos.4, 5 and 6 accordingly, decreed the suit with no order as to cost.
4. Arguments heard and record perused.
5. Learned counsel for the appellant by challenging the validity of promissory note submitted that the said document cannot be termed a promissory note as it bears signatures of two witnesses and to ascertain the actual fact, said documents was not sent to Handwriting Expert, in spite of the application filed by the appellant before the trial Court. Learned counsel submits that the promissory note cannot be attested by the witnesses and in case any signature by the stranger are affixed thereupon, the signing shall be presumed to have been made in view of Contract Act, and it shall not fall within Negotiable Instruments Act as the attestation of pro note by the witnesses is impermissible and can only be made by a stranger in the capacity as status of endorser. To support his contentions, learned counsel for appellant placed reliance on the cases of ISHTIAQ AHMED v. ABDUL RASHID (2007 M LD 225) and ABDUL RAUF v. FAROOQ AHMED AND ANOTHER (2007 CLD 114). Both these citations are not attracting in the facts and circumstances of the present case.
6. Conversely, learned counsel for the respondent submits that earlier suit filed by the respondent was dismissed on the point that document was not promissory note. Being aggrieved and dissatisfied with the order, the respondent has filed Miscellaneous Appeal No,14 of 2009 and after hearing the counsel for the parties the appeal was allowed on 12-3-2010 with directions to the District Judge, Karachi-East to proceed with the matter on merits within three months from the date of communication of the order. It is submitted that the captioned appeal against the impugned judgment passed by the District Judge, Karachi-East is without necessary facts and evidence of parties, which are proper and according to law, hence the appeal is meritless and liable to be dismissed. Learned counsel submits that the earlier order passed on Miscellaneous Appeal No,14 of 2009, on 12-3-2010, reveals that the order dated 27-1-2009, passed in the Suit No,63 of 2008 was set aside and matter was remanded to District Judge, Karachi-East to decide the same on merits. Leave to defend application was allowed unconditionally and the appellant was allowed to file written statement. On remand, the suit was decided on merits followed by impugned judgment, as mentioned supra.
7. Section 4 of Negotiable Instruments Act, defines the promissory note in the following words:- "A 'promissory note' is an instrument in writing (not being the Bank Note or Currency Note) containing A unconditional undertaking, signed by maker to pay on demand or 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."
8. In order to prove a document to be a promissory note following conditions have been set forth:
(i) An unconditional undertaking to pay.
(ii) Sum of money should be certain.
(iii) The payment should be to, or to the order of, a certain person, or to the bearer of the instrument.
(iv) The maker should sign the document.
' If these four conditions are fulfilled., the document becomes a promissory note. In the instant case the receipt of Rs,9,00,000 loan amount has not been empathetically denied by the appellant. The conditions laid down for a promissory note have been fulfilled. To support her contentions, Ms. Mehreen Ibrahim learned counsel for respondent placed reliance on a Division Bench's judgment reported as NADEEM KAMRAN and ANOTHER v. WASEEM AKHTAR TAREEN (2011 CLC 837). Reliance has also been placed upon the case of MUHAMMAD RAFI.QUE v. MUHAMMAD NAWAZ (2001 CLC 318), wherein it is held that a promissory note can be executed to secure the payment of monetary obligations even where there was no debt or payment involved not necessary that payment should be contemporaneous with the execution of pro note and the contents of the document would bring the document within the definition of promissory note as defined in section 4 of Negotiable Instruments Act, 1881. ##TE# It was further held that provision of Negotiable Instruments Act, 1881 did not make a promissory note invalid, if consideration for execution of the same was not contemporaneous with such execution.
9. Admittedly, not only four conditions of promissory note are present but its genuineness or execution has not been specifically challenged; particularly the appellant has stated that he has borrowed the loan of Rs,9,00,000 from the respondent and such evidence has thoroughly been discussed by the trial Court. There is no misappreciation, non-reading or misreading of evidence has been asserted in the contents of the instant appeal. Except challenging the veracity of the document to be a pro note, the learned counsel did not dilate upon the merits as described in evidence. Learned counsel for the appellant submits that the said document was not referred to Handwriting Expert however, it is an admitted fact that such application for referring the said documents was made by the appellant before the trial Court, after conclusion of evidence. In the last paragraph of impugned judgment, learned trial Court by dismissing the application, filed under Article 78 of Qanun-eShahadat Order observed that the application filed at belated stage and since there is admission of defendant/appellant that he had obtained a loan of suit amount, no useful purpose will be served by referring the document (Promissory Note) to the Handwriting Expert.
10. In view of the foregoing, the judgment of learned trial Court found to be passed on cogent reasons. The appellant has badly failed to point out any illegality, infirmity, misreading or non- reading of evidence in the well-reasoned impugned judgment, so as to warrant interference by this court. Resultantly, the captioned appeal being devoid of merits is dismissed with no order as to costs.
11. Above are the reasons for the short order announced in the early hours of the day.