1. ' ABDUL RASOOL MEMON, J.---This Appeal is directed against the judgment dated 31.5.2010 passed by learned IV-Additional District Judge, Karachi Central whereby the suit filed by the appellant for recovery of Rs,54,350/under 0. XXXVII Rule 2, C.P.C. against the respondent was dismissed.
2. 2.The facts leading to filing of the above suit are that the appellant, a private limited company incorporated under the Companies Ordinance, 1984, employed the respondent No,1 as a Medical Information Officer. The respondent No,1 had requested the appellant for necessary assistance for purchase of motor car for her personal and office use, which was acceded and she was granted a loan of Rs,150,000/- by the appellant company and such agreement dated 25.4.2001 as well as a promissory note were executed on 15.5.2002, thereafter a cheque of Rs,150,000/- as loan amount was issued in favour of respondent No,1 which was drawn by her on 25th April, 2002. As per agreement the said loan was to be repaid by the respondent No,1 through installments. The respondent No,2 stood guarantor for respondent No,1 in the said contract. However, before clearance of loan amount, the contract of respondent No,1 was completed and she was terminated on 18th June, 2003. In the meanwhile, the respondent No,1 repaid some installments amounting to Rs,18,572.. After completing contract, respondent No,1 submitted bills of miscellaneous expenses and terminal benefits payable to her, from which the amount due on her, was adjusted even then Rs,54,350 - remained as balance amount of loan of motor car to be paid by respondent No,l.
3. 3.Leave to defend the suit was allowed to respondents/defendants vide order dated 23.8.2004.
4. Respondent No,1 filed her written statement wherein she challenged the maintainability of the suit and denied the execution of promissory note. It was further pleaded by her that the appellant has exaggerated the payments and not adjusted the account to her. Respondent No,2 also denied to have stood guarantor of the respondent No,l. He also disputed the competence of the suit. From the pleadings of the parties, following issues were framed by the trial Court:-- 1.Whether the loan amount of Rs,1,50,000/- paid by the Plaintiff to the Defendant No,2 was encased/credited in her account?
5. 2.Whether the Defendant No,2 is/was liable to repay the loan amount to the Plaintiff in accordance with the terms of the Agreement dated 25.04.2002?
6. 3.Whether the Defendant No,2 was the guarantor of the Defendant No,1 and he guaranteed the repayment of the loan amount to the Plaintiff?
7. 4.Whether the Promissory Note is a legal tendered document and falls within the ambit of Order XXXVII Rule 2 C.P.C.?
8. 5.Whether the Plaintiff submitted the rendition of account?
9. 6.What should the decree be?
4. The appellant examined its Manager Human Resources Muhammad Ashraf Jaliwala at exhibit P/1, who produced resolution of Directors as exhibit P/2, appointment and joining letter of Respondent No,1 and other documents at exhibits P/3 to P/10. He was cross-examined by the learned counsel for the defendants/respondents, thereafter several chances were given to the defendants/ respondents to produce their evidence but they failed, ultimately the side of the defendants/Respondents for recording their evidence, was closed and after hearing the final arguments of appellants counsel, the suit was dismissed by the trial Court by holding that the promissory note was insufficiently stamped thus not admissible in evidence and there being contract between parties, the alleged amount was liable to be recovered as loan amount and not through summary suit.
10. 5.Respondents did appear and contest this appeal despite issuance of notices through ordinary way and publication in daily 'Express". Ultimately on 18.4.2014 the service against the respondents was held good and even after that one more attempt was made for service and once again notices were repeatedly sent to respondents but even though they did not turn up.
11. 6.The learned counsel for appellant contended that the suit is based on negotiable instrument; that the respondents did not lead any evidence in rebuttal and not object on the promissory note when produced by the appellant/plaintiff in evidence; that the promissory note was executed as security for repayment of loan due as per agreement; that the promissory note was written on the stamp paper of Rs,20/- and adhesive stamped of Rs,30/- was also affixed thereon, thus became duly stamped of Rs,50/- which was required on the amount of Rs,150,000/- in the year 2002, therefore, the findings of trial Court are liable to be set aside. In support of his contentions he placed reliance on the cases of Messrs Habib Bank Limited v. Chaudhry Cloth House (1991 CLC 164), Muhammad Sharif v. Muhammad Hashim Paracha and another (PLD 1987 Karachi 76) and Messrs Bahria Foundation, Karachi v. Abdul Aleem Butt (PLD 2006 Karachi 545).
12. 7.I have considered the oral submissions made by the learned counsel for the appellant and gone through the relevant record.
13. 8.Learned trial Court without recording findings on issue wise has dismissed the suit being not maintainable on two grounds, first that the promissory note was not duly stamped as per requirement of the loan amount and second that there was employment contract between the parties and after termination of service of respondent No,1 by virtue of clause 10 of the said contract agreement the loan amount if any remained against respondent No,1, was of civil nature and did not come within the ambit of Order XXXVII of C.P.C.
14. 9.So far as the first ground is concerned, a Promissory Note is chargeable with the stamp duty under section 49 of the Stamp Act, which after amendment by the Sindh Ordinance No,XVIII of 2002 reads as under:-- "28. Promissory Note as defined by section 2(22) -
(a) When payable on demand?
15. (i)When the amount or value does not exceed two hundred fifty thousand rupees; Fifty rupees; (ii)When the amount exceeds two hundred fifty thousand rupees, One hundred rupees
(b) When payable otherwise than on ,demand.
16. 2 percent of the amount payable otherwise than on demand.
17. 10.According to section 49 as amended above, a Promissory Note payable on demand for an amount not exceeding Rs,250,000/-, was chargeable with stamp duty of Rs,50/- at the time of execution of Promissory Note by Respondent No,
1. The Promissory Note available in the record is written on the stamp paper of Rs,20/- having adhesive stamp of Rs,30/- thus stamp duty of Rs,50/- was properly charged on the promissory note of Rs,150,000/- executed by the parties on 16.5.2002 as the promissory note could be written on a paper having adhesive stamps or stamp paper and it is not necessary that promissory note must be affixed with adhesive stamp, if any law is needed on this point reliance may be placed on PLD 2006 Karachi 454 and PLD 1987 Karachi 76, therefore, in the . circumstances of case and legal position as discussed above, the findings of learned trial Court in respect of stamp duty of promissory note are not sustainable in law.
18. 11.So far the second ground is concerned, of course both respondents in their written statement denied the execution of promissory note and respondent No,1 claimed adjustment of entire outstanding from her dues on appellant company, but it is settled law that written statement cannot be treated as legal piece of evidence unless the person having filed it, is examined, in this regard reliance is placed on the case laws reported in PLD 2610 SC 604 and PLD 2004 SC 465.
19. 12.It is admitted position on record that respondents did not come in witness box, therefore, their written statement cannot be considered and if it is excluded then there remains no evidence in rebuttal of appellants evidence. The case of appellant is that the agreement of loan of motor car executed on 25.4.2002 was separate agreement and it will have no concern with the employment contract and for payment of loan amount, the Promissory note was executed by the Respondent No,
1. Nothing has brought on record to controvert the claim of appellant, as such, the suit was rightly brought under Order XXXVII, C.P.C. on the basis of Promissory Note. In PLD 1987 Karachi 102(b) it has been held that negotiable instrument itself be treated as conclusive evidence against the defendant. Since there is nothing in rebuttal on record against the version of appellant/plaintiff and the material evidence in documentary shape produced by the appellant at Ex. P/6 has established the claim of appellant and even otherwise availing of car loan is not denied by the respondents, therefore, while allowing this appeal, the impugned judgment is set-aside, the findings of learned trial Court are reversed and all the issues are decided in affirmative, consequently, the suit is decreed as prayed.