1. ' On the last date Mr.Khalilur Rahman learned counsel who was appearing for the defendant in the case made a statement in Court that he had informed the defendant of the date when the suit was fixed in Court but received no reply from the defendant and as such he pleaded no instructions.
2. Consequently, defendant's side was closed and the suit was adjourned for arguments. Before that on 6-11-91 the plaintiff had closed its side and the suit was adjourned to 20-11-1991 for the evidence of the defendant but on that date no witness on behalf of the defendant was present in Court and, therefore, the case was adjourned to 12-12-1991. As mentioned above on 12-12-1991 the side of the defendant was closed. Today also neither the defendant nor Mr.Khalilur Rahman, Advocate, are present. Mr. Iqbal Kazi, Advocate, present for the plaintiff has argued the case and taken me through the record.
3. ' Brief facts of the case are that the plaintiff who is carrying on business at Karachi as Exporter and Commission Agent in cotton had dealings with the defendant and in the course of their dealing the defendant used to send cotton bales to the plaintiff for sale and on such sale the plaintiff used to charge his commission. When the defendant's consignment of the cotton was sent to the plaintiff the plaintiff usually made advances thereon to the defendant. It is the case of the plaintiff that the defendant failed to clear all the advances made to the defendant by the plaintiff and the amount of Rs,1,65,355.54 claimed in the suit represents the unpaid advance made to the defendant. The following consent issues were framed:-
(1) Is the suit barred by limitation?
(2) Was the defendant liable to pay to the plaintiff a sum of Rs,2,02,355.59 including interest at the rate of 13% per annum on account of sale of cotton bales and towards the accounts for the years 1972-73, 1973-74 and 1974-75? If not, to what effect?
(3) Is the writing dated 5-6-73 valid acknowledgement?
(4) Was the agreement dated 23-10-1975 executed by the defendant voluntarily, of his free will and without coercion? If so, to what effect?
(5) Is the defendant liable to pay to the plaintiff the suit amount of Rs,1,67,355.59?
(6) Relief.
4. ' With regard to Issue No,1 it may be stated that in the written statement an objection was taken that the suit was barred by limitation but the point does not seem to have been taken up during plaintiff's evidence. Apparently, this objection had been taken as the plaintiff's claim related to the period commencing from the year 1972-73. However, it appears from the statement of account Exhs.5/1, 5/2 and 5/3 that the last three advances of Rs,100,000 each were made in November 73 and on that basis the suit instituted on 4-9-76 was not time-barred. Further acknowledgement of liability by the defendant in respect of the amount claimed and promise to pay the same is contained in the agreement dated 23-10-1975 (Exh.5/16). The issue is accordingly decided in the negative.
5. ' Issue No,2 appears to be redundant for, although in para. 1 of the plaint the plaintiff has stated that on the basis of the account for the years 1972-73, 1973-74 and 1974-75 maintained by the plaintiff in the regular course of business an amount of Rs,2,02,355.59, including interest was payable by the defendant, the plaintiff finally claimed only Rs,1,67,355.59 as acknowledged by the defendant in the agreement Exh.5/16. From the statement of account being Exhs.5/1, 5/2 and 5/3 it does appear that an amount of Rs,2,02,355.59, inclusive of interest was outstanding against the defendant as in September 1975. These statements of account had been produced by the plaintiff's witness who stated that these were in conformity with the books of account of the plaintiff and these statements were not challenged. As such it would appear that according to the statements of account the said amount of Rs,2,02,355.59 was outstanding against the defendant. The issue is answered accordingly.
6. ' As regards issue No,3, that too does not appear to be of much consequence for whether or not the writing, which has been produced as Exh.5/4, is a valid acknowledgement would hardly affect the finding in the suit. Since, however, this issue has been framed I am taking it up. The writing in question, being Exh.5/4 is referred to in the plaint as being defendant's acknowledgement of the "debit balance of Rs,2,30,065.68 on 5th June 1973". In his examination-in-chief the plaintiff's witness with reference to this document stated that, "The defendant had acknowledged his liability to pay Rs,2,30,065.68 on 5-6-1973. I produce the acknowledgement as Exh.5/4". There does not appear to be dispute that Exh.5/4 bears the signature of the defendant but it was suggested to the plaintiff's witness during his cross-examination that the document was signed blank and the text was written subsequently. Of course, the suggestion was denied by the witness but it is an admitted position that the said document is in the hand writing of the plaintiff's accountant. The brief text of the document reads as under:- "Rs,230,065.68 (Rs, two lac sixty-five and paisa sixty eight) or balance with M/s. Faiz & Co. book as on 31st May, 1973."
7. (Signature)
8. "5-6-73."
9. ' A reading of the document (Exh.5/4) would show that although it is signed by the defendant, its text can neither be termed as an acknowledgement of the debit balance nor acknowledgement of liability. The issue is therefore decided in the negative.
10. ' Issues Nos. 4, 5 and 6 being related are taken up together. Plaintiff's witness, who was the Accountant in the plaintiff firm, has supported plaintiff's case as set out in the plaint. It is alleged in the plaint and supported by the plaintiff's witness that in October 1975 the defendant came to Karachi and an agreement dated 23-10-75 was executed between the parties which is Exh.5/16.
11. Under the said agreement the total amount outstanding against the defendant was agreed as Rs,1,67,355.59 and this was agreed to be cleared in instalments. The first instalment of Rs,50,000 was to be paid by the defendant to the plaintiff by 31-12-75, another amount of Rs,50,000 was to be paid by 31-3-1976 and the balance to be paid before 31-12-1976. It was also provided under the agreement that in case of failure of the defendant to pay any of the said instalments the entire amount then due shall become payable. Apparently in spite of this agreement no payment was made by the defendant with the result that the whole amount became payable.
12. ' In the written statement the defendant alleged that he was made to sign the said agreement Exh.5/16 under coercion. A similar suggestion appears to have been made to the plaintiffs witness during the cross-examination which was, however, denied. Except for the bare allegation the defendant has failed to produce any evidence to substantiate his allegation of coercion. As against this the plaintiff produced his witness who not only reaffirmed the statement in the plaint but also withstood the cross-examination of the defendant's counsel. Had there been any truth in the allegation, defendant, in the normal course, would have repudiated the agreement soon after the execution of his return from Karachi but there appears to be nothing on record to that effect. I would therefore hold that the agreement, being Exh.5/16, was entered into by the parties valuntarily.
13. ' Similarly the defendant has denied his liability to the plaintiffs claim of Rs,1,67,355.59 as stated in the said Agreement (Exh.5/16) but again except for mere denial nothing has been produced to back up the allegation.
14. In the circumstances, I find that the claim of the plaintiff is fully established on the basis of the documentary evidence particularly the agreement (Exh.5/16) and on the basis of oral evidence of the plaintiffs witness. In this view of the matter, the plaintiff will be entitled to receive from the defendant and the defendant will be liable to pay to the plaintiff the amount of Rs,1,67,355.59 as claimed in the plaint together with interest/mark up from the date of suit.
15. ' 1 accordingly decree the suit in the sum of Rs,1,67,355.59 with interest/mark up at 12% per annum from the date of filing of the suit till payment and costs of the suit.