' ARSHAD MAHMOOD TABASSUM, J. --- Through this single judgment, I intend to decide both the above-said RFAs, as both arise out of one and the same judgment and involve common questions of law and facts. For the sake of convenience, Muhammad lqbal will be termed as "the appellant", whereas Arshad AU as "the respondent".
2. Muhammad lqbal appellant, on 30.06.2004, instituted a suit for recovery of Rs. 50,000/- under Order XXXVII, Rules 1 and 2, CPC, on the basis of a pronote dated 19.04.2003, alongwith mark-up at the rate of 10%, till the satisfaction of the decree with costs of the suit, averring in the plaint that the respondent Arshad Ali had borrowed from him an amount of Rs. 50,000/- on 19.04.2003, in presence of the witnesses by executing a promissory note payable on demand and also executed a receipt in this regard; that at the time of receiving the said amount, he had also undertaken to make payment of Rs. 3,000/- per month being profit to the plaintiff, but he paid profit for only one month and thereafter, stopped making payment of the profit; that the plaintiff also served a legal notice upon the defendant, but he did not respond. He, therefore, claimed decree for recovery of money as stated above.
3. The respondent/defendant submitted application for leave to appear and defend the suit, which was allowed on 09.09.2004, whereafter, the respondent/defendant field his written statement, wherein he denied the execution of the promissory note and maintained that no such amount had been advanced by the appellant/plaintiff and that the pronote was a forged and fictitious document. The divergent pleadings of the parties led the learned Trial Court to frame the following issues. ISSUES
(1) Whether the plaintiff is entitled to get decree of Rs. 50,000/- from the defendant on the basis of pronote dated 19.04.2003? OPP
(2) Whether this Court lacks jurisdiction to try this suit? OPD
(3) Whether the plaintiff is not entitled to recover mark-up alongwith principal amount? OPD
(4) Whether the pronote and receipts are product of fraud, forged and collusive? OPD
(5) Whether the defendant is entitled to recover special cost under Section 35-A, CPC? OPD
(6) Relief.
4. Both the parties produced their pro and contra evidence in support of their respective claim.
Ultimately, the learned Trial Court decreed the suit in the following terms:--- "Upshot of my discussion made above, the suit of the plaintiff is, therefore decreed in his favour to the extent of his principal amount without any mark-up. Since the plaintiff has admitted that he has received Rs. 3000/- from the defendant, therefore, it is decreed to the extent of Rs. 47,000/- with regard to the principal amount with costs of the suit. Decree sheet be prepared."
' It is in this background that both the parties have preferred their separate appeals. The respondent claims setting aside of the impugned decree whereas claim of the appellant is that interest at the rate of 10% be also awarded.
5. I have heard learned counsel for the parties and perused the record with their able assistance.
6. The plaintiff produced Muhammad Salah ud Din as P.W.1, who was stamp vender and scribe of the promissory note Ex.P.1 and receipt Ex.P.2. He stated that the parties were known to him personally and that in his presence the appellant had paid Rs. 50,000/- as loan to the respondent and the respondent put his signatures and affixed his thumb impression on the pronote and receipt. He further stated that Muhammad Ali and Muhammad Sharif, marginal witnesses, also affixed their signatures and affixed thumb impression in his presence. Similarly, Muhammad lqbal, appellant/plaintiff appeared as P.W.2 and fully supported the contents of the plaint. Muhammad All and Muhammad Sharif marginal witnesses of the promissory note and receipt appeared as P.W.3 and P.W.4. They also testified the promissory note and receipt and also admitted their signatures and thumb impressions thereon. The defendant himself appeared as D.W.1 and denied execution of the promissory note and receipt. He produced Muhammad lqbal D.W.2, who stated that neither defendant had borrowed any amount, nor had executed the pronote.
7. The evidence produced by the plaintiff appears to be quite consistent and he has fully proved promissory note and receipt thereto through producing scribe of the documents and through marginal witnesses. No major contradiction or discrepancy has been noticed in the statements of the P.Ws., therefore, the execution of promissory note and the receipt stands proved.
8. Learned counsel for the respondent has argued on the strength of case titled "Abdul Rauf v.
Farooq Ahmad and another" (PLD 2007 Lahore 114) that the promissory note has been attested by two witnesses, which has changed the nature of the promissory note rendering it a bond within the meaning of Section 2(5)(b) of the Stamp Act, 1899, hence, suit under Order XXXVII, CPC, was not maintainable. I have considered this argument of the learned counsel for the respondent. The fact of the matter is that in a recent unreported judgment of the Apex Court, passed in C.A. No. 1784 of 2008, decided on 05.06.2014, it has been authoritatively held as under:- "6. Before we deal with the arguments addressed at the bar, it is worthwhile to see the definition of the expression promissory note as given in Section 4 of the Negotiable Instrument Act which read as under:--- "4.---Promissory note.---A "promissory note" is an instrument in writing (not being a bank-note or a currency note) containing on unconditional undertaking, signed by the maker to pay [on demand or at a fixed or determinable future time] as certain sum of money only to, or to the order of a certain person, or the bearer of 'the instrument"
7 . The above-quoted provision reveals that a promissory note is an instrument in writing if it contains an unconditional undertaking signed by the maker, to pay on demand or at a fixed or determinable future time, a certain sum of money either to or to the order of a certain person or the bearer of the instrument. The instrument in question contains all these conditions. It, however, bears attestation of witnesses but it neither robs it of its nature as a promissory note nor changes any of its conditions nor even the intentions of the parties. It thus cannot be treated as bond by any stretch of interpretation. For the word bond as defined in Section 2(5)(b) of the Stamp Act means and includes any instrument attested by witnesses and not payable to order or bearer whereby a person obliges himself to pay money to another. When we confronted the learned ASC for the respondent whether the instrument contains an unconditional undertaking to pay on demand or at a fixed or determinable future time a certain sum of money either to the order of a certain person or the bearer of the instrument he answered in the affirmative. When so the mere fact that it bears attestation of witnesses would not make it a bond. Therefore, the impugned judgment and the judgments relied upon being against the letter and spirit of Section 4 of the Negotiable Instruments Act cannot be upheld. The case of "Farid Akhtar Hadi v. Muhammad Latif Ghazi and another"
(supra) being in tune with the letter and spirit of Section 4 of the Act may well be cited in this behalf. Reference to the case of "Ram Narayan Bhagat and another v. Ram Chandra Singh and others" (supra) is misconceived as in that case there was nothing in the instrument indicating that the amount was payable to order or bearer. It thus follows that the promissory note containing all the conditions described in Section 4 of the Negotiable Instruments Act cannot be treated as bond."
' In the light of the case-law referred to above, the argument of the learned counsel for the respondent is not tenable.
9. Although the learned Trial Court has decreed the suit, but has not awarded claim made by the appellant/plaintiff in the suit for recovery of 10% mark-up till the satisfaction of the decree as prayed for in the suit. While respectfully relying upon the case titled "EFU General Insurance Ltd. v.
Messrs Security and Management Services (Pvt.) Ltd." (2002 CLD 107), it is observed that the learned Trial Court' was obliged to grant the said relief. Accordingly, the decree passed by the learned Trial Court is modified and it is held that the appellant/plaintiff would be entitled to recover interest at the rate of 10% from the date of institution of the suit till realization of the decretal amount with costs of the suit. Resultantly, the appeal filed by Muhammad lqbal (RFA No. 70 of 2006) is allowed, while the one filed by Arshad Ali (RFA No. 61 of 2006) is dismissed with costs.