This suit under Order XXXVII, C. P. C. Has been filed by the plaintiff --Bank against the defendants for the recovery of Rs.52,887.92. The case of the plaintiffs in the plaint is that defendant No. 1 is a partnership firm and defendants Nos. 2 to 10 are partners of defendant No. 1 firm and that defen-- dant No. 1 maintained an account with the Foreign Exchange Branch of the plaintiff-Bank.
According to the plaintiff a temporary overdraft facility of Its. 2,00,000 was granted to the defendant No. 1 which was adjustable on or about 3-5-1976 and as consideration and acknowledgment of the facility; the defendants executed a promissory note dated 23-2-1976 for Rs.2,00,000. Some payments were made by the defendants and on 8-12-1976 a sum of Rs.39,062.57 was payable by the defendants to the plaintiff. By letter dated 11-12-1976 the defendants admitted the claim of the plaintiff and promised to pay the amount within a short time. As the amount was not paid, the plaintiff filed the present suit on 12-12-1979, for the recovery of Rs.52,887.92 including interest. C. M. A. No. 497/80 is the application filed on behalf of the defendants under Order XXXVII, rule 3, C. P. C. Seeking unconditional leave to appear and defend the above suit.
2. Before I deal with C.M.A. 497/80, I may refer to the application under section 149 read with section 151, C.P.C, filed on 12-12-1979 alongwith the plaint by the plaintiff for enlarging time by two weeks for payment of deficit court-fee. It may be mentioned here that the plaint was presented in this Court on 12-12-1979 with one rupee court-fee stamp affixed thereon and the balance court-fee stamps amounting to Rs.2,097 were affixed on 16-12-1979. This application under sections 149 and 151, C. P.
C. Was sup--ported by an affidavit dated 12-t2-1979 of an officer of the plaintiff stating that the challan for the court-fee had been presented in the National Bank of Pakistan and in two days the plaintiff would get the requisite court-fee. A courter-affidavit was filed opposing the application on the ground that court-fee stamps could be obtained in one day and in any case the plaintiff should have purchased the court-fee stamps from the stamp-vendors. A rejoinder was filed on behalf of the plaintiff and Mr. Zahid Hussain Burhani, learned counsel for the plaintiff, also filed his own affidavit and in which be has stated that he had deposited the pay order for Rs.2,097 in National Bank of Pakistan, City Court Branch, Karachi, on 11-12-1979 and a photostat copy of the challan was annexed to the affdavit. The cballan shows that the amount was tendered by the learned counsel. The learnedcould not collect challan from the National Bank of Pakistan on 13-12- 1979. As it was a half day for the banks and the counsel was busy in Courts in the morning. 14-12- 1979 was a Friday and the counsel collected the receipted challan from the Bank on 15-12-1979 and deposited it with the office of the Assistant Superintendent of Stamps, Karachi. Then the learned counsel went to attend a case in -this Court where he was held up till after 1-00 p.m. A copy of the daily cause list has been filed with the affidavit of Mr. Burhani showing the case in which he was held up. In the circumstances Mr. Burhani could reach the office of the Assistant Superinten--dent of stamps at about 3-00 p.m. And found that the concerned clerk was not there and he could. Not get the court-fee stamps on 15-12-1979. Next day he obtained the stamps and affixed the same in the suit.
3. Mr. A. Sattar Memon, learned counsel for the defendant very fairly stated that he does not dispute the contents of Mr. Burhani's affidavit but contended that under the Original Side Rules only one affidavit can be filed in support of an application and in the instant case as the affidavit of the officer of the plaintiff-Bank was already on record, the affidavit of Mr. Burhani should be discarded and not taken into consideration while deciding the application under sections 149 and 151, C. P. C.
The contention is mis--conceived. I do not find any rule which places a restriction on the filing of one affidavit only in support of an application. More than one affidavit can be filed in support of an application.
4. In my view the facts stated in the affidavit of Mr. Burhani, which facts have not been denied by the learned counsel for the defendant, make out -a very strong case for exercise of discretion by this Court in favour of the plaintiff under section 149, C. P. C. This application is accordingly; granted and the time enlarged till 16-12-1979 for payment of balance court-fee.
5. In support 'of the application under Order XXXVII, rule 3, C. P. C. Mr. A. Sattar Memon, has advanced the following pleas
(a) The suit is not maintainable under the summary chapter.
(b) Suit is time-barred.
(c) Letter of acknowledgment dated 15-12-1979 on behalf of the defen--dant is in law a promissory note and the letter not being stamped is not admissible in evidence.
6. As regards the first contention, learned counsel has relied upon two judgments of this Court reported in Habib Bank Ltd. v. Kaycee Corporation (PLD 1980 Kar. 143) and Nazim v. Messrs Habib Bank Ltd., Karachi and another (1980 CLC 2173). 1 may mention here that in their application for leave to defend and appear, the defendants have not challenged that the amount claimed in the suit or an part thereof is not covered by the promissory note. The execution of th promissory note has also not been challenged nor is any plea advanced that the promissory tote is without consideration. In the circumstances, learned counsel for the defendant cannot call in aid the aforesaid two judgments. The principles enunciated in those two judgments are not applicable to the fact of the present case. In C. M. A. 497/80 there is only . a bare plea that th suit is not maintainable under summary chapter and nothing more. I am, therefore. Of the view that the present suit is maintainable under Order XXXV1I of the Code of Civil Procedure. .
7. The next contention of the counsel for the defendant was that the suit is time-barred. According to learned counsel the letter dated 14-12-1976 is unauthorized and the person who signed it had no authority to write such a letter on behalf of the defendant firm. It is not denied that the letter was issued from the office of the defendant firm. Further the signatures on this letter and one of the signatures on the promissory note are of the same person. The defendants have not plead that any of the signatures on the promissory note are unauthorized. In the circumstances a bare plea in the affidavit in support of C. M. A. 497]80 that the letter was unauthorized does not make out any case for the defendant. The other leg of the argument in this behalf was that the letter in any case does not amount to an acknowledgment. To consider the merit of this contention, the letter dated 14-12-1976 of the defen--dant firm addressed to the plaintiff is reproduced here -.-- "With reference to your letter No. SUS/ADV/18304 dated the 8th inst. (received today) we thank you for your patience so far. We would request you to kindly allow us further time to enable us to pay up the balance amount of Rs.39,062.57 which we hope to pay within a short time.
8. Lastly Mr. A. Sattar Memon contended that the letter of 14-12-1976 in law is a promissory note and not being stamped as required, it is inadmis--sible in evidence. I cannot see how this letter amounts to a promissory note. This letter plainly is written in reply to a letter of the plaintiff making a demapd, and the defendant while acknowledging the debt seeks time to pay the same. It cannot be treated as a promissory note attracting stamp duty.
9. C. M. A. 497/80 under Order XXXVII, rule 3, C. P. C. Has, therefore, no merit and it is dismissed. As a result I decree the suit against the defen--dants jointly and severally in the sum of Rs.52,887.92 with simple interest at the rate of 10 per cent. Per annum from the date of the filing of realization. The plaintiff shall also be entitled to costs.