' AZIZ-UR-REHMAN, J.--- The instant suit has been filed by the plaintiff through its Chief Executive viz. Syed Ahsan Ali son of Syed Mumtaz Ali for seeking recovery of Rs.8,888,253 [Rupees _Eight Million, Eight Hundred Eighty Eight Thousand, Two Hundred and Fifty Three only], damages and mesne profit against the defendant with the following prayers:---
(a) To declare that the defendant has purchased the material from the plaintiff on credit basis against which post-dated cheques were issued in favour of the plaintiff which were bounced due to insufficient funds;
(b) To declare that the defendant is liable to pay the amount of Rs.8,888,253 to the plaintiff against the material which the defendant had already purchased from the plaintiff on credit basis.
(c) To declare that the defendant is liable to pay 18% markup of the entire amount from the date, the defendant purchased the material on credit basis from the plaintiff till the suit realization,
(d) To pass judgment and decree directing the defendant to pay the damages amounting to Rs.50 millions to the plaintiff towards mental torture, agony and physical discomfort sustained by the plaintiff due to the non fulfilment of the legal obligation on the part of the defendant.
(e) To declare that the defendant has committed an offence under section 489-F, P.P.C. For which he is liable to be prosecuted under the law.
(r) Any other/further or better relief as this Hon'ble Court may deem fit in the circumstances of the case.
(g) To award the cost of the suit to the plaintiff.
2. Precisely the relevant facts leading to the above prayers are as follows:---
3. Per averments made in the plaint, plaintiff is a registered company under Companies Ordinance, 1984 having its head office at Polymer House, Survey No.136, Main National Highway, Karachi and doing business of manufacturing of. Polystyrene Resin under Sale Tax Registration No.12-03-3903- 001-19 in the entire country. The defendant per assertion, is also doing business under the name and style of Syed Trading Corporation having its office at Plot No.ST-8A, Shop No.9, Imambargah SKN Colony, Karachi, under Sales Tax Registration No.17- 50-3900-010-46. Per plaintiff's assertion, defendant usually used to purchase materials of . General Purpose Polystyrene (GPPS) and High impact Polystyrene (HIPS) on credit basis from the plaintiff-company.
4. Per averments, the defendant was one of its good customers who always used to purchase the materials on credit basis. In the process of business, the defendant often used to issue post-dated cheques. Being a good client, the plaintiff never hesitated to sell goods to the defendant on credit basis because of good business relationship with the plaintiff.
5. The defendant nevertheless, regarding purchase of materials used to issue cheques, being subject-matter of the present suit, took advantage and let the various cheques dishonoured on presentation before the drawee Bank [Habib Metropolitan Bank Ltd.] due to insufficient funds. These cheques issued in favour of the plaintiff were in consideration of prices of materials purchased by the defendant from the plaintiff.
6. The details of materials under the sales tax-cum-commercial invoices purchased by the defendants are given as below:--- {{TABLE}} S# Date Invoice No. Description of Goods Unit Prize 6-11-2007 HI-00246 HIPS Grade 113 10-11-2007 GP-00588 GPPS Prime Grade 109 #TBS CLC #TBE
3. 15-11-2007 GP-00606 GPPS Prime Grade 107
4. 20-11-2007 GP-00629 GPPS Prime Grade 107
5. 1-12-2007 GP-00680 GPPS Prime Grade 107
6. 1-12-2007 H1-00291 HIPS Prime Grade 111
7. 5-12-2007 GP-00707 GPPS Prime Grade 107
8. 5-12-2007 GP-00702 GPPS Prime Grade 109
9. 14-12-2007 GP-00745 GPPS Prime Grade 109
10. 18-12-2007 HI-00323 HIPS Prime Grade 111
11. 2-1-2008 GP-00778 GPPS Prime Grade 106
12. 21-1-2008 HI-00371 HIPS Off Grade 95
13. 21-1-2008 GP-00845 GPPS Off Grade 91
14. 25-1-2008 GP-00860 GPPS Off Grade 91
15. 29-1-2008 GP-00872 GPPS Prime Grade 108
16. 2-2-2008 GP-00888 GPPS Off Grade 91
17. 2-2-2008 GP-00887 GPPS Off Grade 91 Value excluding SED and Sales Special Excise Duty @1 % Sales Tax@20 Value including SED and Sales Tax % Tax 282500 2825 56500 341825 272500 2725 54500 329725 267500 2675 53500 323675 {{TABLE}} 401250 4012.50 80250 485512.50 401250 4012.50 80250 485512.50 277500 2775 55500 335775 133750 1337.50 26750 161837.50 272500 2725 54500 329725 272500 2725 54500 329725 69375 693.7 13875 83943.75 66250 662.50 13250 80162.50 237500 2375 47500 287375 341250 3412.50 68250 412912.50 113750 1137.50 22750 137637.50 675000 6750 135000 816750 1189825 11898.25 237965 1439688.25 2361450 23614.50 472290 2857354.50 9239136.05 {{TABLE}}
7. Per assertions, the plaintiff has paid sales tax @ 20% to the Sales Tax Department in accordance with Sale Tax-cum-Commercial Invoices. Such payment made is quite evident from the sales tax return challans. The materials purchased by the defendant from the plaintiff as per chart above is in the sum of Rs.92,39,136.05 [Ninety Two Lacs Thirty Nine Thousand One Hundred Thirty Six and Paisas Five only]. For and in consideration of materials purchased by the defendant on credit basis, several post-dated cheques issued in favour of plaintiff, of course, were coupled with the assurance that the cheques on, presentation to the drawee Bank would be encashed on the specified dates of the cheques. The various cheques issued in favour of the plaintiff were duly signed by the defendant.
8. The details of dishonoured cheques and return memos of drawee Bank i.e. Habib Metropolitan Bank Ltd. Are detailed as below:--- {{TABLE}} Sr. No. Cheque No. Date Amount Returned memo. Date and HMC 29443683 24-11-2007 Rs .2 , 00 , 000 two lac only) (Rupees 6-2-2008 HMC 29443684 26-11-2007 Rs.2,00,000 two lac only) (Rupees 6-2-2008 {{TABLE}} HMC 29443685 27-11-2007 Rs.2,00,000 (Rupees two lac only) 6-2-2008'
HMC 29443688 29-11-2007 Rs.2,00,000 (Rupees two lac only) 6-2-2008 HMC 29443686 30-11-2007 Rs.2,00,000 (Rupees two lac only) 6-2-2008 HMC 29443687 30-11-2007 Rs.2,00,000 (Rupees two lac only) 6-2-2008 HMC 8-12-2007 Rs.164862 (Rupees one 6-1-2008 29445602 lac sixty four thousand eight hundred and sixty two and fifty paisa HMC 8-12-2007 Rs.164862.50 (Rupees 6-2-2008 29443692 one lac sixty four - thousand eight hundred and sixty two and fifty paisa)
HMC 10-12-2007 Rs.170912.50 (One lac 6-2-2008 29443693 seventy thousand nine hundred and twelve and fifty paisa HMC 14-12-2007 Rs.170912.50 (One lac 6-2-2008 29445604 seventy thousand nine hundred and twelve and fifty paisa)
HMC 18-12-2007 Rs.245025 (Rupees two 6-2-2008 29445616 lac forty five thousand and twenty five only)
HMC 18-12-2007 Rs.170912.50 (one lac 6-2-2008 29443698 seventy thousand nine hundred and twelve and fifty paisa)
HMC 19-12-2007 Rs.170912 (One lac 6-2-2008 29445614 seventy thousand nine hundred and twelve. only) {{TABLE}} HMC 20-12-2007 Rs.164862.50 (Rupees 6-2-2008 29445606 one lac sixty four thousand eight hundred and sixty two and fifty paisa)
HMC 22-12-2007 Rs.164862.50 (Rupees 6-2-2008 29445607 one lac sixty four thousand eight hundred and sixty two and fifty paisa)
MHC 24-12-2007 Rs.164862.50 (Rupees 6-1-2008 29445608 one lac sixty four thousand eight hundred and sixty two, and fifty paisa)
HMC 29-12-2007 Rs.164862.50 (Rupees 6-1-2008 29445611 one lac sixty four thousand eight hundred and sixty two and fifty paisa)
HMC 3-1-2008 Rs.164862.50 (Rupees .15-1-2008 29445624 one lac sixty four thousand eight hundred and sixty two and fifty paisa)
HMC 4-1-2008 Rs.164862.50 (Rupees 7-2-2008 29445612 one lac sixty four thousand eight hundred and sixty two and fifty paisa)
HMC 5-1-2008 Rs.164862.50 (Rupees 16-1-2008 29445624 one lac sixty four thousand eight hundred and sixty two and fifty paisa)
HMC 8-1-2008 Rs.170912.50 (One lac 11-1-2008 29445626 seventy thousand nine hundred and twelve and fifty paisa) #TBS CLC #TBE {{TABLE}} HMC.
29445627 11-1-2008 Rs.170912.50 (One lac seventy thousand nine hundred and twelve and fifty paisa) 7-2-2008 HMC 13-1-2008 Rs.164862.50 (Rupees 7-2-2008 29445636 one lac sixty four thousand eight hundred and sixty two and fifty paisa)
HMC 14-1-2008 Rs.164862.50 (Rupees 7-2-2008 29445628 one lac sixty four thousand eight hundred and sixty two and fifty paisa)
HMC 16-1-2008 Rs.164862.50 (Rupees 7-2-2008 29445629 one lac sixty four thousand eight hundred and sixty two and fifty paisa)
HMC 17-1-2008 Rs.164862.50 (Rupees 7-2-2008 29445630 one lac sixty four thousand eight hundred and sixty two and fifty paisa)
HMC 19-1-2008 Rs.170912.50 (One lac 7-2-2008 29445631 seventy thousand nine hundred and twelve and fifty paisa)
HMC 24-1-2008 Rs.287,375 (Rupees 7-2-2008 29445643 two lac eighty seven thouswand three hundred and seventy five only)
HMC 26-1-2008 Rs.170912.50 (One lac 4-2-2008 29445632 seventy thousand nine hundred and twelve and fifty paisa)
HMC 1-2-2008 Rs.170912.50 (One lac 6-2-2008 29445633 seventy thousand nine {{TABLE}} hundred and.Twelve and fifty paisa)
HMC 2-2-2008 Rs.164863 (Rupees one 6-2-2008 29445647 lac sixty four thousand eight hundred and sixty three only)
HMC 5-2-2008 Rs.164862 (Rupees one 7-2-2008 29445646 lac sixty four thousand eight hundred and sixty two only)
HMC 6-2-2008. Rs.164863 (Rupees one 7-2-2008 29445645 lac sixty four thousand eight hundred and sixty three only) {{TABLE}}
9. On presentation, the aforementioned cheques were bounced for want of funds and/or due to insufficient hinds. Per assertions, upon such dishonour of cheques, the plaintiff called upon the defendant and apprised him about dishonouring of the cheques. Such position, was not only acknowledged but also apologized. Per averments, the apology so sought by the defendant was also accepted, on the defendant's assurance, that the amounts of aforesaid cheques would be paid by the defendant to the plaintiff as promised.
10. All the cheques, presented before the drawee bank on specified dates stood bounced due to in- sufficient funds. Despite requests, the defendant, nevertheless remained ridiculous and passive in performing his promises made in respect of encashment of cheques. The cheques presented for encashment, despite assurance, remained bounced/dishonoured due to non-availability of sufficient funds.
11. Apart from the above, against purchase of more materials, on credit basis, the defendant in consideration of the value thereof issued twelve more cheques which are detailed as below:--- {{TABLE}} S. N . Cheque No. Date Amount HMC 29445644 8-2-2008 Rs.164862 HMC 29445648 12-2-2008 Rs.164862 . HMC 29445649 9-2-2008 Rs.164863
4. HMC 29498151 15-2-2008 Rs.164863 HMC 29498152 19-2-2008 Rs.164863 HMC 29498153 21-2-2008 Rs.164863 HMC 29498154 23-2-2008 Rs.164863 HMC 29498155 26-2-2008 Rs.164863 HMC 29487156 28-2-2008 Rs.164863 HMC 29498157 29-2-2008 Rs.164863 HMC 29498158 3-3-2008 Rs.164863 HMC 29498159 4-3-2008 Rs.164863 {{TABLE}}
12. Keeping in view the past good relationship between the parties, no F.I.R. Was lodged and/or criminal proceedings initiated viz-a-viz dishonoured cheques. The defendant was once again apprised about the dishonouring of the cheques on presentation before the drawee bank viz. M/s. Habib Metropolitan Bank Ltd. In response, per averments, the defendant besides extending his apology had sought time for liquidating the outstanding dues payable to the plaintiff.
13. The defendant, indeed, thereafter has paid Rs.200,000/- [Rupees Two Hundred Thousand only] through two pay orders each amounting to Rs.100,000/- [Rupees One Hundred Thousand only]. The defendant apart from the above, has also paid some amount in cash. Total amount thus paid Lois amounting to Rs.350,882.75 [Rupees Three Hundred Fifty Thousand, Eight Hundred Eighty Two and Paisas Seventy Five only]. For the balance outstanding amount, the defendant made promise to pay the same within a period of one month [i.e. Up to 10-3-2010]. But notwithstanding such promise(s) the defendant failed and/or avoided to pay the lawful outstanding dues to the plaintiff.
14. The plaintiff, nonetheless has afforded ample opportunities to defendant for the payment of the outstanding amounts but all efforts remained fruitless. Consequently, a legal notice dated 3-4- 2010 was sent by the plaintiff through his counsel whereby the defendant was called upon to pay the outstanding amount of Rs.18,888,253 [Rupees Eight Million, Eight Hundred Eighty Eight Thousand, Two Hundred and Fifty Three only] along with .1.8% markup within 7 days. Notice sent to the defendant though was replied but payment was not made and/or avoided by raising pseudo pleas. Per averments, the cause of action has accrued in favour of the plaintiff on 6-11-2007 and also on other date.s as mentioned in para 16 of the plaint. Hence the instant suit.
15. Upon filing of the suit, summons were issued to the defendant from time to time, however, the defendant remained unserved. From the 'diary sheet' of the Additional Registrar (O.S.) of 4-10-2011, it reflects that service on the defendant was effected inter alia through publication in the daily 'JANG' Urdu Karachi dated 6-9-2011, Under the same order of Additional Registrar (O.S.), service was held good upon the defendant.
16. Notwithstanding, service the defendant failed, and/or avoided to file any written statement.
Consequently, on 10-10-2011 when the case came-up before the court the following order was passed:--- "10-10-2011.
' Mr. Junaid M Siddiqui, Advocate for the plaintiff The defendant has been served through publication in Daily Jang, Karachi dated 6-9-2011 as well as all other modes. Service upon the defendant was held good on 4-10-2011 by the Additional Registrar, but no one has appeared on behalf of the defendant. Consequently, the defendant is hereby declared ex parte."
17. The matter thereafter, being posted for 'final disposal'. Ultimately, vide order dated 27-9-2012, the plaintiff was directed to file 'affidavit-in-ex parte proof' of plaintiffs witness. Upon filing 'affidavit-in ex parte proof' on 4-10-2012 'examination-in-chief of plaintiffs witness Syed Haider Ali son of Insaf Ali [Exh.P.W.1] was recorded. The witness [P.W.1] in Ilis 'deposition' produced in his 'affidavit-in ex parte proof as Exh.P.W.1/3, board resolution as Exh.P.W.1/4. The exhibits numbers of 33 dishonoureOcheques and 33 return memos thereof issued by the drawee Bank are detailed with Exhibits numbers are as follows:--- {{TABLE}} Sr. No. Cheque No. Date Amount Exh. Returned memo. And date Exh.
HMC 29443683 24-11-2007 Rs.200,000 (Rupees two lac only) P.W.1/5 6-2-2008 1/6 HMC 29443684 26-11-2007 Rs.200,000 (Rupees two lac only) 1/7 6-2-2008 1/8 HMC 29443685 27-11-2007 Rs.200,000 (Rupees two lac only) 1/9 6-2-2008 1/10
(1) HMC 29443688 , 29-11-2007 Rs.200,000 (Rupees two lac only) 1/11 6-2-2008 1/12 HMC 29443686 30-11-2007 Rs.230,000 (Rupees two lac only) 1/13 6-2-2008. 1/14 {{TABLE}} HMC 29443687 30-11-2007 Rs.200,000 (Rupees two lac only) 1/15 6-2-2008 1/16 HMC 29445602 8-12-2007 Rs.164826.50 (Rupees one lac sixty four thousand eight hundred and sixty two and fifty paisa . 1/17 6-1-2008. 1/18 HMC 8-12-2007 Rs.164826.50 (Rupees 1/19 6-2-2008 1/20 29443692 one lac sixty four thousand eight hundred and sixty two and fifty paisa HMC 10-12-2007 Rs.170912.50 (One lac 1/21 6-2-2008 1/22 29443693 seventy thousand nine hundred and twelve and fifty paisa HMC 14-12-2007 Rs.170912.50 (One lac 1/23 6-2-2008 1/24 29445604. Seventy thousand nine hundred and twelve and fifty paisa HMC 18-12-2007 Rs.245025 (Rupees two 1/25 6-2-2008 1/26 29445616 lac forty five thousand and twenty five only)
HMC 18-12-2007 Rs.170912.50 (one lac 1/27 5-2-2008 1/28 29443698 seventy thousand nine hundred and twelve and fifty paisa)
MHC 19-12-2007 Rs.170912.50 (one lac 1/29 6-2-2008 1/30 29445614 seventy thousand nine hundred and twelve and fifty paisa)
MHC 20-12-2007 Rs.164862.50 (Rupees 1/31 6-2-2008 1/32 29445606 one lac sixty four thousand eight hundred and sixty two and fifty paisa)
HMC 22-12-2007 Rs.164862.50 (Rupees 1/33 6-2-2008 1/34 29445607 one lac sixty four thousand eight hundred and sixty two and fifty paisa)
MHC 24-12-2007 Rs.164862.50 (Rupees 1/35 6-1-2008 1/36 29445608 one lac sixty four thousand eight hundred. and sixty two and fifty paisa)
(17). HMC 29445611 29-12-2007 Rs.164862.50 (Rupees one lac sixty four thousand eight hundred and sixty two and fifty paisa) 1/37 6-1-2008 1/38 HMC 29445624 3-1-2008 Rs.164862.50 (Rupees one lac sixty four thousand eight hundred and sixty two and fifty paisa) 1/39 15-1-2008 1/40 HMC 29445612 4-1-2008 Rs.164862.50 (Rupees one lac sixty four thousand eight hundred and sixty two and fifty paisa) 1/41 7-2-2008 1/42 HMC 29445625 5-1-2008 Rs.164862.50 (Rupees one lac sixty four thousand eight hundred and sixty two and fifty paisa) 1/43 16-1-2008 1/44 (21). HMC 29445626 8-1-2008 Rs.170912.50 (One lac seventy thousand nine hundred and twelve and fifty paisa) 1/45 11-1-2008 1/46 HMC 29445627 11-1-2008 Rs.170912.50 (One lac seventy thousand nine hundred and twelve and fifty paisa) 1/47 7-2-2008 1/48 HMC 29445636 13-1-2008 Rs.164862.50 (Rupees one lac sixty four thousand eight hundred and sixty two and fifty paisa) 1/49 7-2-2008 1/50 HMC 29445628 14-1-2008 Rs.164862.50 (Rupees one lac sixty four thousand eight hundred and sixty two and fifty paisa) a 1/51 7-2-2008 1/52 HMC 29445629 16-1-2008 Rs.164862.50 (Rupees one lac sixty four thousand eight hundred and sixty two and fifty paisa) 1/53 7-2-2008 1/54 HMC 29445630 17-1-2008 Rs.164862.50 (Rupees one lac sixty four thousand eight hundred and sixty two and fifty paisa) 1/55 7-2-2008 1/56 #TBS CLC #TBE {{TABLE}} HMC 29445631 19-1-2008 Rs.170912.50 (One lac seventy thousand nine hundred and twelve and fifty paisa) 1/57 7-2-2008 1/58 HMC 29445643 24-1-2008 Rs.287,375 (Rupees two lac eighty seven thousand three hundred and seventy five only) 1/59 7-2-2008 1/60 HMC 26-1-2008 Rs.170912.50 (One lac 1/61 4-2-2008 1/62 29445632 seventy thousand nine hundred arid twelve and fifty paisa)
HMC 1-2-2008 Rs.170912.50 (One lac 1/63 6-2-2008 1/64 29445633 - seventy thousand nine hundred and twelve and fifty paisa)
HMC 2-2-2008 Rs.164863 (Rupees one 1/65 6-2-2008 1/66 29445647 lac sixty four thousand eight hundred and sixty three only)
HMC 5-2-2008 Rs.164862 (Rupees one 1/67 7-2-2008 1/68 29445646 lac sixty four thousand eight hundred and sixty two only)
HMC 6-2-2008 Rs.164863 (Rupees one 1/69 7-2-2008 1/70 29445645 lac sixty four thousand eight hundred and sixty three only) {{TABLE}}
18. Since, on behalf of defendant no one was present to cross-examine the plaintiffs' witness [P.W.1], therefore, 'cross-examination' of P.W.1' to the defendant was marked as 'Nil'. On the request of plaintiff's counsel, the plaintiff 's side of evidence was 'closed' as plaintiff did not wish to examine' any other witness in support of the plaintiff's claim.
19. Besides, twelve other un-presented cheques drawn on Messrs Habib Metropolitan Bank Ltd.
Have also been produced and exhibited as below:--- {{TABLE}} Sr.No. Cheque No. Date Amount Exh.
1 HMC 29445644 8.2.2008 Rs.164862 PW-1/71 2 HMC 29445648 12.2.2008 Rs.164862 1/72 3 HMC 29445649 9.2.2008 Rs.164863 1/73 4 HMC 29498151 15.2.2008 Rs.164863 1/74 5 HMC 29498152 19.2.2008 Rs.164863 1/75 6 HMC 29498153 21.2.2008 . Rs.164863 1/76 7 HMC 29498154 23.2.2008 Rs.164863 1/77 8 HMC 29498155 26.2.2008 Rs.164863 1/78 9 HMC 29498156 28.2.2008 Rs.164863 1/79 10 HMC 29498157 29,2.2008 Rs.164863 1/80 11 HMC 29498158 3.3.2008 Rs.164863 1/81 12 HMC 29498159 4.3.2008 Rs.164863 1/82 {{TABLE}}
20. I have heard Mr. Junaid M. Siddiqui, learned counsel for the plaintiff and also perused the record minutely with the able assistance of the learned counsel for the plaintiff.
21. Learned counsel for plaintiff Mr. Junaid M. Siddiqui, Advocate argued that despite 'service' the defendant has failed and/or avoided to appear and contest the matter. The averments made in the plaint and/or evidence led by the plaintiffs witness [P.W.1] have/has thus gone unrebutted/unchallenged. Per learned counsel, the issuance of cheques in favour of the plaintiff is ex facie proof of the amounts outstanding in respect of materials purchased by the defendant from the plaintiff. Per learned counsel section 118(a) of the Negotiable Instrument Act [XXVI of 1881] creates a presumption in respect of Negotiable Instrument inter alia of its due execution for valuable consideration and acceptance.
22. Learned counsel for the plaintiff further contended that besides outstanding principal amount the plaintiff is also entitled for markup @ 18% per annum on the entire amount upto realization of the outstanding amounts.
23. Mr. Junaid M. Siddiqui, Advocate further contended that the cheques issued in favour of the plaintiff admittedly have been dishonoured for and on account of insufficient funds. The execution and issuance of cheques have not been denied by the defendant. Per learned counsel, the claim of the plaintiff in the instant suit is genuine and lawful. Arguing the case; the learned counsel further submitted that under section 118 of the Negotiable Instruments Act, 1881, [XXVI of 1881] negotiable instruments including cheque (s) made, drawn, accepted are presumed to be for consideration and to dispel such presumption the defendant is heavily required to discharge the onus of proof.
Mr. Junaid M. Siddiqui, Advocate further urged that since the defendant has failed to come forward to raise any defence, therefore, per learned counsel the plaintiffs suit deserves to be decreed as prayed. Per learned counsel even the plaintiff is entitled for damages in the sum of Rs.50.00 million as prayed.
24. Heard arguments. Perused the record. Before proceeding further it would be appropriate to reproduce herein section 118 of the Negotiable Instruments Act, 1881 [XXVI of 1881] which runs as follows:--- "118. Presumption as to negotiable instruments. --- Until the contrary is proved, the following presumptions shall be made:---
(a) of consideration; that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, indorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred, for consideration;
(b) as to date; that every negotiable instrument bearing a date was made or drawn on such date;
(c) as to time of acceptance; that every accepted bill of. Exchange was accepted within a reasonable time after its date and before its maturity;
(d) as to time of transfer; that every transfer of a negotiable instrument was made before its maturity;
(e) as to order of indorsement; that the indorsements appearing upon a negotiable instrument were made in the order in which they appear thereon;
(f) as to stamp; that a lost promissory note, bill of exchange or cheque was duly stamped;
(g) that holder is a holder in due course; that the holder of a negotiable instrument is a holder in due course; provided that, where instrument has been obtained from its lawful owner, or from any person in lawful custody thereof by means of an offence or fraud, or has been obtained from the maker or acceptor thereof by means of an offence or fraud, or for unlawful consideration, the burden of proving that the holder is a holder in due course lies upon him."
25. A cheque being a special instrument is regulated under section 118 of the Negotiable Instruments Act, 1881. It is significant to note that special rules of evidence in terms of section 118 of the Negotiable Instruments Act is applicable that is: 'Until the contrary is proved, the following presumption shall be made:---
(a) Of consideration.--- that every Negotiable Instrument was made or drawn for consideration and that every such instrument when it has been accepted, endorsed, negotiated or transferred, was accepted, endorsed, negotiated or transferred for consideration; ' The presumption attached to a negotiable Instrument besides statutory is mandatory and any person who wishes to dispel it then, of course, he would be required to furnish proof/cogent evidence to the contrary.
'26. In the case of Muhammad Sabir v. Khalil-ur-Rehman [Reported in 2002 CLD 1543 Pages 1548 and 1549], the court while dilating upon the presumption attached to Negotiable Instruments Act under section 118 of the Negotiable Instruments. Act, 1881 [XXVI of 1881] observed as follows:--- "The contention of the learned, counsel for the appellant that the Promissory Note, was not executed on 24-5-1982 but on a date 6-10-1981. Such contentions cannot be sustained for more than one reason, firstly under section 118 of the Negotiable Instruments Act, presumption is attached to a Negotiable Instrument, as to receipt of consideration, date of execution, time of receipt of consideration, date of execution, time of acceptance, time of transfer, order of endorsement, as to stamp and holder in due course are presumed unless, contrary is proved. It is settled position in law, where statutory presumption is attached as to existence of any fact. Then any person setting up a plea in rebuttal, takes upon himself to prove such plea in rebuttal.
Defendant/appellant challenged such presumption, pleading reliance that the Promissory Note, was executed along with alleged agreement executed between the parties on 6-10-1981.
' Contention of the learned counsel for the appellant that once the consideration has been denied by him, burden was shifted on the plaintiff/respondent to have proved the consideration. Such arguments are fallacious in relation to inchoate instrument. Section 118(a) of the Act lays down a special rule of evidence contrary to the general rule of burden of proof as already discussed above. Burden to dispel statuary presumption is always on a party seeking to negotiate or rebut the presumption as to existence of consideration. Once the execution is admitted then it was for the defendant/appellant to disprove consideration. For reference see Mst. Sughran Begum and 11 others v. Haji Mir Qadir Bukhsha and 2 others (PLD 1986 Quetta 232 DB) and United Bank Ltd. v. Mrs. Bilquees Begum and 3 others (1988 CLC 1613) and S.K. Abdul Aziz v. Mahmoodul Hassan and 3 others (1988 CLC 337)."
27. Inter alia while dilating upon the question of dishonouring of a cheque by non-payment and/or non-presentation of a cheque in a situation like that in the case of EFU General Insurance Ltd v.
Messrs Security and Management Services (Pvt.) Ltd. [Reported in 2002 CLD 107], the observation made reads as follows:--- "The fact remains that the cheques when presented before the bank on due dates were not encashed and even after notice to the defendants on 20-8-1996, which fact has not been disputed by the defendants, the payment of these cheques was not made by the defendants.
Section 92 of the Act of 1881 deals with the question of dishonouring by non-payment and it provides that a cheque will be deemed to have been dishonoured by non-payment when the drawee of cheque makes default in payment. Further section 76 of the Act deals with the situations where presentation of an instrument will be unnecessary and instrument will be deemed to be dishonoured. The import of -section 76 has been fairly discussed in the case of C.M.
Sivaram v. V.S. Jayaram Mudaliar (supra) in the following words:--- ' 'Finally, on the last point we are clearly of the opinion that both under section 76 (c) as well as under general principles of law presentment is wholly unnecessary and would be futile in the instant case. It is settled law that when a maker refuses to pay the money or puts forward certain defences it is not necessary to present the bill for payment and the maker would be deemed to have waived his right to require that the note should be shown to him. It must be held that the defendant must be deemed to have waived his right to take advantage of any default in presentment for payment, Due presentment is insisted upon solely for the benefit of the maker who is prepared to honour his obligation. But this requirement can obviously have no application to a party who repudiates his obligation. Waiver may not only be expressed but may also be implied and any conduct of the maker leading to the inference that the note if presented would not be honoured would dispense with the necessity of presentment. The principle of the decision in International Contractors Limited v. Prasanta Kumar Sur AIR 1962 SC 77 clearly applies to the instant case. In that case a party who was bound to reconvey the property under an agreement of reconveyance denied the very truth of the agreement and repudiated his obligation. It was held that when the party sued him for specific performance, it was not necessary for that party to have made a formal tender of the, amount payable to the other party who had definitely and unequivocally repudiated his obligation. We therefore, hold that presentment is dispensed with and unnecessary under section 76 of the Act.'
' In the present case, when after return of four cheques without encashment from the drawee bank the defendants despite service of notice failed to make payment of these cheques a situation had emerged where it can be safely deduced that the cheques were dishonoured and thus subsequent presentation was unnecessary. The arguments of the learned counsel for defendants that after return of cheques by the bank with the refusal memo, the plaintiffs should have again presented these cheques before the bank for encashment or should have immediately served notice on the defendants instead of serving such notice after more than eight months, have no force as the plaintiffs were under no legal obligation to present the dishonoured cheques to the drawee bank again or to have immediately served such notice to the defendants.
Moreso, when the intention of defendants for non-payment of the sum mentioned in the four cheques were dishonoured. Issue No.1 is answered accordingly."
28. The instant case, is based on dishonoured cheque/cheques, however, it is worth to note that plaintiff herein instead of filing a suit for recovery under the summary chapter [i.e. Order XXXVII, C.P.C.] B has opted to file a 'civil suit'. Nevertheless, such option is permissible under Order XXXVII, C.P.C. Because Rule 2, C.P.C. Vests discretion in the plaintiff. For convenience purposes, Order XXXVII, Rule 2(1) to (3), C.P.C. Is reproduced herein: "2. Institution of summary suits upon bills of exchange, etc.--- (1) All suits upon bills of exchange, hundies or promissory notes, may, in case the plaintiff desires to proceed hereunder, be instituted by presenting a plaint in the form prescribed; but the summons shall be in Form No.4 in Appendix B or in such other form as may be from time to tjme prescribed.
(2) In any case in which the plaint and summons are in such forms, respectively, the defendant shall not appear or defend the suit unless he obtains leave from a judge as hereinafter provided so to appear and defend; and, in default of his obtaining such leave or of his appearance and defence in pursuance thereof the allegations in the plaint shall be deemed to be admitted, and the plaintiff shall be entitled to a decree---
(a) for the principal sum due on the instrument and for interest calculated in accordance with the provisions of section 79 or section 80, as the case may be of the Negotiable Instruments Act, 1881, up to the date of the institution of the suit, or for the sum mentioned in the summons, whichever is less, and for interest up to the date of the decree at the same rate or at such other rate as the Court thinks fit;
(b) for such subsequent interest, if any, as the Court may order under section 34 of this Code; and
(c) for such sums for costs as may be prescribed; Provided that, if the plaintiff claims more than such fixed sum for costs, the costs shall be ascertained in the ordinary way.
(3) A decree passed under this rule may be executed forthwith." [underlining is mine]
29. Keeping in view the vesting of discretion in the plaintiff vis-a-vis availing of remedy under Order XXXVII, Rule 2(1), C.P.C., even the filing of 'ordinary suit' based on negotiable instrument does not deprive the plaintiff from the 'benefit of presumption' attached to a negotiable instrument under section 118 of the Negotiable Instruments Act, 1881. On this aspect of the matter I would like to refer to the case of Syed Kausar Abbas Shah v. Sardar Khan (Reported in 2005 YLR 3321), wherein it was held as under:--- "5. Cheques are special instruments regulated by Negotiable Instruments Act of 1881. Special rules of evidence as contained in section 118 of the said Act state that:- 'Until the contrary is proved, the following presumption shall be made:---
(a) Of consideration that every Negotiable Instrument was made or drawn for consideration and that every such instrument when it has been accepted, endorsed, negotiated or transferred, was accepted, endorsed, negotiated or transferred for consideration, (b)
' When the law prescribed that presumption shall be attached to a particular fact, the said fact has to be presumed to be true unless otherwise is proved by the party alleging the same. The learned counsel for the petitioner referred to the plaint which was merely a civil suit and not a suit under Order XXXVII, C.P.C. And argued that the presumptions contained in the Negotiable Instruments Act shall not be applicable because it was only a civil suit and the responsibility of the plaintiff to prove his case in accordance with the standards of legal requirement could not be avoided. I am afraid, this argument is not available because Order XXXVII, C.P.C. Merely provides an option to the plaintiff to avail the remedy of summary trial where the suit is filed before the principal Court of original civil jurisdiction in the District and special process under the said Order is issued and the defendant is not entitled as a matter of right to defend the case or to file written statement. He has to obtain leave of the Court and, if granted, he can defend the suit with reference to such extent. However, if the defendant chooses to avail the remedy through the normal civil suit, he can do so because Rule 2 of 'Order XXXVII, C.P.C. Provides that "all suits upon bills of exchange, Hundis or promissory note may, in case the plaintiff desires to proceed hereunder, be instituted by presenting a plaint in the form prescribed". Hence the term in case the plaintiff desires to proceed hereunder gives an option to the plaintiff to avail the benefit as well as the procedure is different than the normal civil suit but if he desires not to proceed under Order XXXVII, C.P.C. To file a civil suit under the normal procedure, Negotiable Instruments Act shall still be applicable even if the suit is filed in the civil Court because the Negotiable Instruments Act is not dependent on Order )(XXVII, C.P.C. Only. The provisions thereof are independent and can be availed even in the normal civil Courts. The presumption under section 118 of the Act, as stated above, is attached to every negotiable Instrument irrespective of the form of the plaint or the form where the remedy was being sought.
6. The term "until the contrary is proved" in the beginning of section 118 indicates that it shall be the responsibility of the person, who claims that the instrument was executed without consideration, to prove the reasons why it was so executed. Once this is done, the onus is shifted to the holder of the instrument. In a case reported in PLD 1974 Notes 38, it was held that under section 118(a) of the Act presumption will arise in favour of a payee of a cheque that the cheque was issued for consideration. This presumption is statutory and mandatory and a person who wishes to dispel it must furnish proof to the contrary. In a case where a person, challenging the consideration of a Negotiable Instrument, does not adduce satisfactory evidence of absence of consideration or where in satisfactory evidence of absence of consideration or where in evidence is produced the statutory presumption under section 118(a) comes into play to the effect that the Negotiable Instrument was made or drawn for valid consideration."
30. As far as claim for damages is concerned, indeed in rebuttal there is no defence/evidence but - still very heavy burden lies on the plaintiff to prove the damages in the sum of Rs.50.00 million or any part thereof. As a rule even fixed amount of damages cannot be granted D unless quantum of actual losses is proved through cogent evidence. Merely, on the basis of routine assertions damages cannot be granted. Under the Contract Act, 1972 [IX of 1972] the party, claiming damages firstly to plead and then to lead sufficient, truth worthy and positive evidence in proof of damages.
31. From the perusal of plaint, 'affidavit-in-ex parte proof and 'documents exhibited' in P.W.1 'deposition', the details of damages are missing. The plaintiff even otherwise, has failed to discharge onus of proof in sufficient manner. The learned counsel for the plaintiff did not cite any case-law pertaining to grant of damages, without discharging the onus of proof, pleadings and/or leading sufficient evidence. On this aspect of the matter, reliance can be placed on the following cases: Muhammad Amin Muhammad Bashir Ltd. v. Muhammad Amin Brothers Ltd. [PLD 1969 Kar. 2331, wherein it was observed as follows:--- ... ...We are in respectful agreement with the point .Of view that difficulties in estimating damages should not be excused for shirking the duty of solving the problem that may be before a court and that the material which may be before the court should be scrutinized and examined for purposes of finding what relevant and sound inference can be drawn from it. This attitude is however to be accompanied with the obligation that failure of, a party to produce the best evidence should be reckoned against him. Their Lordships have gone to the length of saying that every presumption should be made against such a party. In the present case we find that there is no evidence at all of the price prevailing at the time, at which the alleged purchase was made by the plaintiff- appellant, nor is there anything to indicate the condition of the market on 30th June, 1959, on which date the breach took place. Moreover, oral statement has been made without any documents to support it, which we do not consider to be the best evidence and feel justified in drawing the conclusion that adverse presumption should be made against the plaintiff-appellant.
In these circumstances, we are of the view there is no material before us to enable us to hold that the plaintiff-appellant has suffered any monetary loss."
B. Daoud Shami v. Messrs Emirates Airlines and another PLD 2011 SC 282 (Appellate Jurisdiction), wherein the relevant observations made read as follows:- "22. In the case of Syed Ahmad Sailed Kirmani v. M/s Muslim Commercial Bank Ltd., Islamabad (1993 SCMR 441), this court held that only such damages could be recovered which would naturally arise in the usual course of things from such breach or the parties at the time of making the contract know that loss or damage was likely to be result from the breach.
23. Applying the rules referred to in the preceding paragraph to the facts of the instant case, we find that although the loss was being claimed by the appellant plaintiff on the basis of special circumstances i.e. That the former had to attend his graduation ceremony in Washington D.C., the said circumstance was not brought to the notice of the defendant airline. In the entire body of the plaint, there is no averment that defendant-airline was informed that he had purchased the ticket and was proceeding to U.S. To attend the graduation ceremony.. Even in the evidence led before this court, no reference was made that respondent-airlines had notice of the aforementioned special circumstance. In Mohindra Lal Sen v. Union of India (AIR 1960 Patna 411), the court refused to grant damages to a passenger who alleged that on account of delay of train, he had missed the engagement. The court found that he could only be awarded damages if the railway administration knew at the time of reservation of the suit that plaintiff had an engagement at the place of destination which he could miss if the train was delayed. The court held as follows:--- "There was no contract to take him to Calcutta for a particular object. It is well to remember that the punctuality of the train is not guaranteed; and assume that on the relevant date the Down Janata Express reached Calcutta very late, say, after 9-00 hours. By the lateness of the train also the plaintiff might have missed the engagement. Can it be reasonable urged that the plaintiff would be entitled to damages on account of his missing the engagement because the train reached late? This circumstance is sufficient to show in bold relief that the damage, on account of his missing his engagement cannot be said to be a natural consequence of the breach of contract by the Union of India.
' The plaintiff would also be entitled to damages if the Railway Administration knew at the time of reservation of the seats that the plaintiff had an engagement in Calcutta at 9-00 hours on 29-9- 1954, and that he had booked the tickets and reserved the seats in order to go there to fulfil the engagement. Unfortunately, there is no evidence on this point. There is nothing to show that the plaintiff told the Railway authorities that he was booking the tickets and reserving the seats for an engagement in Calcutta at 9-00 hours on 29-9-1954."
32. For want of sufficient evidenee/requisite details and in view of case laws, referred to hereinabove, I am of the considered view that the plaintiff is not entitled for any damages.
Resultantly, the claim for damages in the sum of Rs.50 million is disallowed.
33. In view of the forgoing discussion, I have come to the conclusion that defendant is only liable to pay Rs.8,888,253 [Rupees Eight Million, Eight Hundred Eighty Eight Thousand, Two Hundred and Fifty Three only] to the plaintiff. Consequently, the plaintiffs suit is decreed in the sum of Rs.8,888,253 plus markup @ 10% per annum from the date of suit till realization of the decretal amount. Cost of the suit is also allowed.