MAHMOOD A. KHAN, J. This First Appeal filed under Section 96 C.P.C. has impugned the judgment and decree both dated 06.08.2021 as passed by learned VIIth Addl, District Judge, Karachi (South) in Summary Suit No. 33/2021, whereby, the suit of the respondent No.1 was decreed in the sum of Rs.
23,33,795/- along with markup @ 6% per annum. As per the record, the said -summary suit was filed by the respondent No.1 stating that the respondent No.1 is premier supplier of cooking oil in Pakistan, enjoying impeccable reputation among its customers. The respondent No. 1's company in order to increase the sales of its products entered into an agency agreement with the appellant at Karachi. Initially the distributorship went smoothly and amicably but towards the end of 2019 the appellant started defaulting on making payments to respondent No.1 despite the respondent No.1 providing him with the product to be distributed but the appellant continually and willfully defaulted and -failed to make his due payments to the respondent No. 1. The respondent No.1 repeatedly asked for their due payments but the appellant kept the respondent No.1 on false hopes. On much insistence the appellant issued a written submission in late 2019 acknowledging that he owned payments of Rs. 23,33,795/- to the respondent No.1 and in case he fails to comply with his commitment the respondent No.1 was at liberty to pursue legal action against him. The respondent No.1 tried every endeavor to get their money back from, the appellant including sending a legal notice to him, but to no avail. After repeated demands the appellant informed the respondent No.1 that the Cheque No.1710731918 may be en-cashed for the owed amount of Rs.23,33,795/-, The said cheque was deposited in the company s bank account which was dishonored due to insufficient funds. Thereafter despite repeated reminders by respondent No.1 in this regard the appellant has deliberately remained in default of his obligations towards respondent No.1 to date, as such the said suit was filed with prayer to direct the appellant to pay an amount to respondent No.1 in the sum of Rs. 23,33,795/- along with the prevailing interest rate from the institution of the suit until realization of the claimed amount.
2. That on appearance of the appellant and filing the leave to appear and defend, the same was declined by the learned VII Addl. District Judge, Karachi (South) and decreed the suit of the respondent No.1 in the sum of Rs. 23,33,795/- along with the prevailing interest rate from the institution of the suit until realization of the claimed amount.
3. The appellant has filed the instant First Appeal with the following prayer; a) Under the above facts and circumstances, it is humbly prayed on behalf of the appellant above named that this Hon'ble Court may be pleased to call for the R&P of Summary Suit No 33/2021 from the Court of Vllth Addl. Sessions Judge, Karachi-South and after perusing and hearing the learned counsel be pleased to allow the appeal and set-aside the impugned judgment and decree both dated 06.08.2021. b) This Hon'ble Court stay further proceeding of Summary Suit No. 33 of 2021 till the final disposal of this Appeal. c) This Hon'ble Court may please to grant any other relief.
4. Learned counsel for the appellant contends that the learned Trial Court had decreed the suit at the very initial stage of granting of leave wherein cogent grounds were present. Learned counsel in this regard has relied upon the same grounds as taken in the leave to defend application along with further grounds taken in the memo. of appeal herein. It is as such contended on part of learned counsel for the appellant that the appellant was not having any business relationship with respondent No.1 and that the subject cheque was- forcefully obtained from the appellant. It is further contended that the said matter was reported to the concerned authorities i.e. concerned Police Station and to the concerned Bank. Learned counsel for the appellant had contended that the appellant had made out a reasonable case of grant of leave, which was not entertained by the learned Trial Court and as such the subject decree is liable to be set aside. Learned counsel for the appellant in, support of his contentions, relies upon the case law reported as (i)"AIR 1956 Culcutta Page 553, (ii) AIR 1929 Bombay Page 462 and (iii) PLJ 1981 Karachi Page 99.
5. Learned counsel for respondent No.1 contends that the learned Trial Court had rightly passed the impugned order whereby the grounds taken by the appellant were discussed -properly with the grounds of refusal as present therein to which no disturbance can be found even in the memo. of appeal as now brought forward. It is further contended on part of learned counsel for respondent No.1 that the cheque in question was dishonored on account of insufficiency of funds and not on any other ground. It is as such contended that the appeal on merits is not liable to be entertained as the grounds taken on part of the appellant are devoid of legal reasoning and justification in the present circumstances bearing from the record.
6. Having heard the learned counsel and gone through the record, we have observed in the matter that the learned Trial Court had considered the grounds of leave to defend as brought forward on part of the appellant and in this regard discussed the same in the relevant paragraph as follows; "I have given anxious consideration to the arguments advanced by parties counsel and perused the material available before me. It is a matter of record that defendant has not denied to have entered into distributor agency agreement with the plaintiff. Further the ground taken by the defendant that his cheque book was stolen by one of his relative who in collusion with the plaintiff has misused the same is concerned, the defendant has not moved any application for missing of his cheque book after theft, as he lodged FIR after filing of summary suit. Even after receiving counter affidavit to the application under Order XXVII Rule 2, C.P.C. that "the drawer's signature is different." It is also matter of record that cheque return memo. is not showing that signature of defendant is different. There is just allegation about difference in signature without any proof. The defendant has failed to produce any proof in respect of not issuing of subject cheque besides he has also not denied regarding execution of Agency Appointment Form dated 04-02-2019, his letter date: 23-10-2019, lqramama regarding company credit policy annexed with the plaint as annexure "B", "C" and "D". The contentions of plaintiff are treated as admitted piece of evidence. The documentary evidence comes on record shows that the defendant issued cheque to the plaintiff, which were presented by the plaintiff before bank for encashment but the same were bounced due to insufficient balance".
7. It is further observed by us that the FIR now been brought up bearing No. 55/2021 lodged at P.S Ubauro District Ghotiki on 25.04.2021 is without any conclusion of its fate. In this regard, no ground is found present to the very element of the cheque having been dishonored on account of insufficient funds as remarked by the Bank in the matter and in this regard the claim as to have informed the Bank remarking should have been stopped by the drawer as any other similar remark which is absent. The case law relied upon by learned counsel for the appellant are distinguishable from the facts and circumstances of this case. Learned Trial Court reliance upon the reported case of (M/s Ahmed Autos and another v. Allied Bank of Pakistan Ltd., PLD 1990 SC 497) is also present and the matter is not liable to be considered otherwise. The point of consideration being "Whether the learned Trial Court has rightly passed the decree or the same required interference". We have found that the learned Trial Court has given reasonable order based upon the application of mind and law and in the circumstances as present. It is observed that the existence of business along with the version of availability of the negotiable instrument were properly considered along with the sufficient material present on record in this regard. It is 'observed that the requirement of leave to lead evidence was not got made out, as leave is available only when the disputed question of facts arise from the record, which in the present case has not been shown on part of the appellant.
The impugned order is not found suffering from any infirmity. The point of determination stands answered in negative and the appeal was dismissed by our short order dated 02.02 2022 and these are the reasons for the same.