MIANGUL HASSAN AURANGZEB, J:- Through the instant Regular First Appeal under Section 96 of the Code of Civil Procedure, 1908 ("C.P.C."), the appellant, Muhammad Ehtasham Buland Khan, impugns the judgment and decree dated 30.11.2021, passed by the Court of the learned Additional District Judge, Islamabad, whereby respondent No.1's suit for recovery under Order XXXVII C.P.C. was decreed to the extent of cheque No.C-22067982 for Rs.6,500,000/-, with costs.
2. The facts essential for the disposal of the instant appeal are that on 02.07.2018, respondent No.1, Syed Shabahat Ali, instituted a suit for recovery of Rs.6,700,000 on the basis of three cheques issued by the appellant and respondent No.2, Sarbuland Khan, who is father of the appellant.
3. In the said suit, it was inter alia pleaded that due to trust and friendly relations between the parties, on 31.12.2017 respondent No.1 gave Rs.6,700,000/- to the appellant as a loan; that for the return of the said loan, the appellant issued cheques bearing Nos.C-22067982 and C-22068001 for Rs.6,500,000/- and Rs.2,200,000/-, respectively as well as an undertaking about the liability; that respondent No.2 i.e. the appellant's father also issued cheque No.8865456 for Rs.2,200,000/-; that all the three cheques when presented for payment, were dishonoured due to insufficient funds; that after the said cheques were dishonoured, respondent No.1 lodged two separate criminal cases against the appellant on 11.04.2018 and 24.05.2018 at Police Stations Rawat, Rawalpindi and Aabpara, Islamabad, respectively; that on 12.02.2018, the appellant executed an undertaking whereby he acknowledged his liability to pay the amount claimed by respondent No.1; and that the appellant did not return the borrowed amount which necessitated the institution of the suit.
4. On 05.12.2018, the appellant and respondent No.2 filed application for leave to appear and defend the suit. Respondent No.1 contested the said application by filing a reply. The learned trial Court vide order dated 02.05.2019 conditionally allowed the application for leave to appear and defend the suit subject to submission of surety bond equivalent to the amount claimed in the suit.
5. Thereafter, the appellant and respondent No.1 filed the joint written statement on 27.05.2019 wherein they denied the liability and inter alia pleaded that no amount was ever given as a loan by respondent No.1 to the appellant or respondent No.2; that respondent No.1 hired the services of the appellant for stocks portfolio management and when respondent No.1 did not pay the appellant's share in the profit, the latter stopped the advisory services; that afterwards respondent No.1 managed his stocks portfolio on his own and incurred losses for which he attributed responsibility to the appellant; that the cheques and the undertaking along with gold ornaments and the appellant's passport were taken forcibly by respondent No.1; that the appellant lodged a complaint to the F.I.A. against respondent No.1; that respondent No.1 had also lodged criminal cases against the appellant in which he was arrested and then released on bail; that the appellant had been teaching in respondent No.1's teaching program Traducation'; and that the suit is based on lies and respondent No.1 has concealed actual facts including the whatsapp communications between him and the appellant.
6. Out of the divergent pleadings of the contesting parties, the learned trial Court framed the following issues on 13.06.2019:- "i. Whether the defendant No.1 Muhammad Ehtasham Buland Khan borrowed an amount of Rs.6,700,000/- from the plaintiff on 31.12.2017 ? OPP ii. Whether the defendant No.1 issued cheque bearing No. C22067982 for repayment of amount Rs.6,700,000/- which was subsequently dishonoured, hence, the plaintiff is entitled to decree for recovery of the above stated amount ? OPP iii. Whether there was nothing outstanding towards defendant No.1 and cheque in question was obtained by the plaintiff under duress/undue influence by the plaintiff ? OPD-1 iv Whether the plaintiff has got no cause of action to institute the suit against the defendant ?
OPD-1 v. Whether the suit instituted by the plaintiff is false, frivolous, vexatious and is liable to be dismissed ?OPD-1 vi. Relief?"
7. In the evidence before the learned trial Court, respondent No.1 himself appeared as PW-1 and gave evidence in support of the suit. Respondent No.1 also tendered in evidence (i) Exh.P-1 cheque No.C-22067982, dated 31.12.2017 amounting to Rs.6,500,000/- from the account of the appellant at Meezan Bank-Multan Branch; (ii) Exh.P-2 slip showing return of cheque No.C-22067982 due to insufficient funds; (iii) Exh.P-3 cheque No.8865456, dated 09.02.2018 amounting to Rs.2,200,000 from the account of respondent No.2 at Habib Bank Limited-Multan Branch; (iv) Exh.P-4 slip showing return of cheque No.8865456 due to insufficient funds; (v) Exh.P-5 an undertaking dated 12.02.2018 executed by the appellant; (vi) Exh.P-6 cheque No.C-22068001, dated 30.03.2018 amounting to Rs. 2,200,000/- from account of the appellant at Meezan Bank-Multan Branch; and
(vii) Exh.P-7 slip showing return of cheque No. C-22068001 due to insufficient funds.
8. The appellant and respondent No.2 appeared as DW-1 and DW-02 respectively. In the documentary evidence, they produced Exh.D-1 which is the request of the investigation officer in F.I.R. No.305, dated 11.04.2018 registered under Section 489-F P.P.C. at Police Station Rawat, Rawalpindi for verification of stamp paper No.390, dated 20.09.2017 and the issuer stamp vendor's statement; Exh. D-2 which is the report under Section 173 Cr.P.C. in F.I.R. No.305, dated 11.04.2018 under Section 489 F P.P.C. registered at Police Station Rawat, Rawalpindi; Exh. D-3 which is the report under Section 173 Cr.P.C. in F.I.R. No.227, dated 24.05.2018 under Section 489-F P.P.C. at Police Station Aabpara, Islamabad; and F.I.R. No.227, dated 24.05.2018 under Section 489-F P.P.C. at Police Station Aabpara, Islamabad as Mark-A.
9. The learned trial Court vide impugned judgment and decree dated 30.11.2021 decreed respondent No.1's suit to the extent of Cheque No.C22067982 amounting to Rs.6,500,000/- with costs against the appellant whereas to the extent of respondent No.2, the said suit was dismissed.
Hence, the instant appeal.
10. Learned counsel for the appellant, after narrating the facts leading to the filing of the instant appeal, submitted that the impugned judgment and decree is against the law and facts; that respondent No.1 had clearly admitted during cross-examination that he does not remember the date on which cheque No. C-22067982 was issued; that respondent No.1 had also admitted that the cheque is written in two different inks; that there are no witnesses of the undertaking attributed to the appellant as his acknowledgment of the liability; that Exh.D-1 i.e. the correspondence between the Police Station Rawat, Rawalpindi and the stamp vendor proves that the agreement dated 20.09.2017 was executed by respondent No.1 for stocks account management; that respondent No.1 did not discharge the onus to prove his claim that the appellant obtained loan from him; that no receipt of loan was produced in evidence; that respondent No.1 obtained the cheques and undertaking from the appellant and respondent No.2 by coercion; that in fact respondent No.1 incurred loss on trade of stocks for which he held the appellant responsible; that the advisory relationship between the appellant and respondent No.1 had ended after the latter did not pay share in profit in breach of the agreement; that respondent No.1 had lodged F.I.Rs against the appellant at Police Station Rawat, Rawalpindi and Police Station Aabpara, Islamabad; that in both the said cases, the appellant was acquitted by the Courts of competent jurisdiction; that the learned trial Court did not discuss the evidence produced by the appellant instead merged the issues; and that the impugned judgment and decree is not sustainable in law. Learned counsel prayed for the appeal to be allowed and for the suit of respondent No.1 to be dismissed.
11. On the other hand, learned counsel for respondent No.1 submitted that during the evidence, the appellant had admitted the issuance of the cheques and execution of the undertaking; that the appellant also admitted that he had neither applied for cancellation of the cheques in question nor stopped payment directly to the bank; that the appellant also did not file a suit for cancellation of the cheques; that the stamp vendor s correspondence does not prove that an agreement between respondent No.1 and the appellant was entered into; that due to his absence, proceedings under Section 512 Cr.P.C. have been initiated against the appellant vide order dated 11.01.2023 passed by the learned trial Court in case F.I.R. No. 227 under Section 489-F P.P.C. registered at Police Station Aabpara, Islamabad; that the appellant did not fulfill the condition for submission of security contained in this Court's order dated 17.01.2022 for suspension of the impugned judgment and decree; and that the impugned judgment and decree being in accordance with law and facts deserves no interference. Learned counsel prayed for the appeal to be dismissed with costs.
12. I have heard the contentions of the learned counsel for the contesting parties and have perused the record with their able assistance. The facts leading to the filing of the instant appeal have been set out in sufficient detail in paragraphs 02 to 05 above, and need not be recapitulated.
13. The record shows that the impugned judgment and decree essentially depends on veracity of cheque (Exh.P-1) and the undertaking (Exh.P-5).The appellant had neither denied their execution nor alleged forgery the appellant, instead alleged that the said documents were procured under coercion. The cheque (Exh.P-1), being a negotiable instrument, there is an initial presumption under Section 118 of the Negotiable Instruments Act, 1881 ("the 1881 Act") that a negotiable instrument is made, drawn, accepted or endorsed for consideration. Indeed, the said presumption is rebuttable and for such rebuttal, the onus is on the person alleging coercion and denying consideration to prove the same. The Hon'ble Supreme Court in case of Najaf Iqbal Vs. Shahzad Rafique (2020 SCMR 1621) had held to the effect that presumptions mentioned in Section 118 of the 1881 Act were attached with a negotiable instrument unless proved to the contrary.
14. Perusal of the evidence reveals that the appellant remained unable to discharge the onus to prove his defence that respondent No.1 employed coercion to obtain the cheques and the undertaking. The appellant appeared as DW-1 and in his statement, he had stated that when respondent No.1 forcibly took the cheques and the undertaking, respondent No.1 was accompanied by the unknown persons pretending to be F.I.A. officials. The appellant admitted that the said unknown persons were not armed and that he did not call the police for help even after their departure. He claimed to have filed a complaint with the F.I.A. but a copy of such complaint or any proceedings thereon were not produced during the evidence. There was also a significant inconsistency between the statements of the appellant DW-1 and his father DW-2 with regard to the place where respondent No.1 allegedly took the cheques and the undertaking from the appellant. The appellant claimed that the said incident took place at Bahria Town whereas DW-2 stated that the incident took place at DW-2 s house at Soan Garden.
15. The appellant clearly admitted issuance of the cheque (Exh.P-1) and signatures thereon. He had not denied the execution of the undertaking (Exh.P-5). In the said undertaking, the appellant not only admits the liability to pay to respondent No.1 but also admits having issued the cheque Exh.P1 to discharge the said liability. The evidence in the present case does not show any steps that the appellant may have taken either to get the cheque in question cancelled or to prosecute respondent No.1 for forcibly snatching the cheque and other articles from him. In these circumstances, after the appellant had failed to establish that the Exh.P-1 and Exh.P-5 were executed under coercion, I am of the view that learned trial Court did not commit any legal or factual error in decreeing the suit of respondent No.1.
16. In view of the foregoing reasons, the instant appeal is dismissed with costs.