JUDGMENT MUKHTAR AHMED JUNEJO, J.-Appellant Khalilur Rehman has called in question the judgment and the decree passed in Suit No.39/86, by the District Judge Karachi East.
2. Said suit was filed by respondent Mohammad Shaft for recovery of Rs.1,00,000/- from appellant Khalilur Rehman. Said amount was said to have been paid to the appellant on 6.7.1985 as a loan and in consideration of the same, the appellant was said to have executed a promissory note of the like amount in favour of the respondent. According to the promissory note, the loan amount was returnable in monthly instalments of at least Rs.1000/- commencing from 1.1.1986. Respondent alleged that the appellant failed and neglected and refused to make payment and hence entire amount was payable in lumpsum by the appellant to the respondent.
3. Initially the suit was filed under Order 37 of C.P.C, as a summary suit. Leave to defend the suit was granted to the appellant by the trial Court on furnishing security. Said order was challenged in Civil Revision Application No.45/87 which was decided by a learned Single Judge of this Court on 16.12.1987 granting to the appellant unconditional leave to defend the suit. Subsequently respondent moved an application for amending the suit from summary suit to ordinary suit but said application was dismissed on 11.8.1988. Said order was challenged in Civil Revision Application No.293/88 filed in this Court. Under an order dated 20.2.1989 a learned Single Judge of this Court allowed the amendment in the plaint with the result that summary suit was converted into an ordinary civil suit for recovery of money.
4. In his written statement, the appellant took legal objections that the suit was time barred because the promissory note was executed in July 1985 and the amended plaint was filed on 25.3.1989 and that the cause of action was shown in the plaint to have accrued in January 1986 but the suit was filed on 25.3.1989 and that the promissory note was liable to be impounded as it was a bond and was not sufficiently stamped. On merits the appellant denied having taken any loan from the respondent or having executed the promissory note.
5. On pleadings of parties, the trial Court framed following issues:
1. "Whether the suit is barred by limitation in view of the fact that the promissory note was executed in the month of July 1985 and the amended plaint was filed on 25.3.1989?
2. Whether the Promissory note annexure 'A' is liable to be impounded as same is a bond duly' attested by the witnesses and signed by the parties?
3. Whether the defendant executed Promissory note Annexure 'A' inconsideration of loan?
4. What should the decree be?"
6. After recording evidence of the parties learned trial Court under the impugned judgment dated 19.12.1989 decreed suit of the respondent for recovery of Rs.1,00,000/- with interest at the bank rate and costs. Hence this appeal.
7. Mr. Nazirullah, learned counsel for the appellant argued that the document called by the respondent to be 'promissory note' was in fact a 'bond' defined by sub-Section (5) of Section 2 of the Stamp Act, that the said document viz bond was executed without consideration, and that before execution of said document dated 6.7.1985 there were disputes between the parties, who appeared before Colonel Mohammad Riaz on 16.1.1985, It was also argued that the suit was time barred having been filed on 7.10.1986 when Rs.9000/- alone were due. It was next argued that there was nothing in the disputed document viz bond about payment of interest. In support learned counsel for the appellant cited the cases of:
(i) Mahmood Hassan Ashraf Vs Shakil Ahmed (1973 SCM R 595)
(ii) Salar Abdur Rauf Vs Mst. Mubarak Bibi (1973 SCM R 332)
(iii) Jawahar Lai Vs Mathura Prasad and another (AIR 1934 Allahabad 661)
(iv) A.T.S.A. Annamalai Chetty and others Vs.S.V. Velayudu Nadar and another (AIR 1917 Madras 539)
8. Mr. Khawaja Sharaful Islam, learned counsel for the respondent argued that the appellant in his cross examination had admitted execution of the disputed document. Learned counsel for the respondent was of the view that the evidence of respondent Mohammad Shafi, was not challenged and it was not controverted.
In his deposition Ex.l, respondent Mohammad Shafi stated that on 6.7.1985 the appellant had obtained from him a loan of Rs,1,00,000/- and had executed demand promissory note, produced as Ex.2. Production of said document was opposed in the trial Court by learned counsel for the appellant, on the ground that it was not properly stamped. Respondent added that Munna Bhai, Shahid Ahmed and Gul Zaman were the witnesses in whose presence the appellant acknowledged receipt of the money and said witnesses and the appellant signed the document Ex.2. As against this, appellant Khalilur Rahman Ex.3 deposed that he did not obtain any loan from the respondent at any time and did not execute the promissory note in favour of the respondent. Appellant admitted having signed a paper at the instance of the respondent without knowing contents of the same. In his cross examination the appellant admitted that he did not challenge the promissory note in any Court after receiving copy of the same. In this way the deed Ex.2 stands proved.
9. Next point requiring determination is, whether the deed Ex.2 is 'Promissory Note' or a bond'. A 'Promissory note' is defined by Section 4 of the Negotiable Instruments Act, to be an instrument in writing containing^ an unconditional undertaking, signed by the maker, to pay on demand or at a fixed or determinable future time a certain sum of money only to the order of a certain person, or to the bearer of the instrument. As per clause (b) of sub-section (5) of Section 2 of the Stamp Act, any instrument attested by a witness and not payable to order or bearer, whereby a person obliges himself to pay money to another is included in the definition of bond.
Under the deed Ex.2 executer has promised to pay Rs.1.00,000/- to a certain person namely respondent Mohammad Shafi in monthly instalments (minimum instalment being Rs.1000/-) commencing from 1.1.1986. In the said deed the executor has not stated that he would pay the said amount on demand or at a fixed or determinable future time only to the order of a certain person or to the bearer of the instrument. Since the amount of the deed was not payable on demand and it was not payable only to the order of the respondent or to the bearer of the instrument, the same does not fall with the definition of 'promissory note', as defined by Section 4 of Negotiable Instrument. Moreover the deed Ex.2 contains attestation by two witnesses. It is, therefore covered by the definition of 'bond' defined by sub-section (5) of Section 2 of the Stamps Act. Presently this controversy is not material because the trial Court at conclusion of the arguments found the document Ex.2 to be a bond and impounded the same and the respondent was directed to pay deficit stamp duty plus penalty, which were paid in time.
10. Next point is about payment of consideration and improbability of the respondent advancing loan to the appellant in the back ground of ill will between the two. Respondent Mohammad Shafi Ex..l admitted in his cross examination that he had made an application in 1985 against the appellant before Col. Muhammad Riaz, before whom the parties appeared on 16.1.1985. Col. Muhammad Riaz advised the respondent to approach the Civil Court, as stated by the latter. It was not suggested to respondent Mohammad Shafi during his cross examination that the appellant was coerced or pressurised to sign the deed Ex.2. Neither in his written statement nor in his deposition Ex.3 appellant Khalilur Rahman took plea that he was forced, coerced or pressurized to execute the deed Ex.2. It was not suggested to respondent Mohammad Shafi during his cross examination, that the consideration for the deed Ex.2 was not paid to the appellant. In his deposition Ex.3 appellant Khalilur Rahman did not state that the Deed Ex.2 was executed without consideration. No such plea was taken by the appellant either in his written statement or in his deposition Ex.3.
11. In his deposition Ex.3, appellant Khalilur Rahman stated that he did not obtain any loan from the respondent and he did not execute the promissory note in his favour and he did not know contents of a paper signed by him at instance of the respondent. Appellant admitted that he had business dealings with the respondent as he used to supply him Taxies. That three Taxies were supplied to the respondent, who did not make any payment. In his cross examination, the appellant admitted that he had read the promissory note after filing of the suit, that he had signed said document and that he did not challenge the same in any Court. In his cross examination, the appellant denied if Col. Riaz was approached against him by the respondent. Since the appellant admitted execution of the document Ex.2, it is to be presumed that consideration for said document Was paid. Learned counsel for the appellant did not want such presumption to be raised in view of the observations made in the case of Mahmood Hassan Ashraf and Salar Abdur Raur Rauf. In the case of Mahmood Hassan Ashraf (1973 SCM R 595), the plaintiff himself admitted that at the time of execution of the pronote nothing was advanced in cash and he failed to prove that he was capable of advancing loans or that he had in fact advanced loans on earlier occasions and in the circumstances it was held that the lower Court had rightly taken the view that the promissory note had been executed under duress and without payment of any money. Said case is distinguishable from this case, where there was no allegation of duress. In the case of Salar Abdur Rauf (1973 SCM R 332) the plaintiff undertook to show that promissory note was for consideration but failed to produce credit worthy evidence and in the circumstances it was held by Peshawar High Court that the plaintiff can not be allowed to turn round and invoke the presumption under Section 118 of Negotiable Instruments Act. The Supreme Court of Pakistan did not interfere with such finding. In present case there was no undertaking by the respondent for proving that the deed Ex.2 was for consideration, although in his plaint he asserted that the appellant had obtained from him loan of Rs.1.,00,000/- and in consideration of the same had executed promissory note dated 6.7.1985. In the cited case the plaintiff stated in the evidence about payment of the consideration but did not succeed in proving the payment. This was not the position in the instant case. Moreover in the cited case the plaintiff was not considered to be a man of ostensible means as he had instituted the suit in the form of forma pauperis. In the instant case the respondent was not considered to be a man of no means and no such plea was taken by the appellant.
12. Lastly there is question about limitation. The deed Ex.2 was executed on 6.7.1985 and the repayment was to commence from 1.1.1986. The instalment due on 1.1.1986 was recoverable within a period of three years as per Article 74 of the Limitation Act. There was no stipulation in the deed Ex.2 that on failure to pay any instalment the rest of the instalments could be recovered in lumpsum.
Hence as per Article 74 of the Limitation Act, the period of limitation would run for three years from the expiration of the first term of payment, as to the part payable, and for other parts from the expiration of the respective terms of payment. The present case would not be covered by the case of Jawahar Lai Vs Mathura Prasad and another (AIR 1934 Allahabad 661) where the defendants executed an unregistered instalment bond, for payment of certain amount with interest at 1% per mensem by instalments each month, with stipulation that in case the fixed instalments or interest thereon were not paid for any two successive months, then the plaintiff would be authorised to realize the entire amount of principal and interest together with costs in a lumpsum. No such stipulation appears in document Ex.2 In the case of A.T.S.A. Annamalai Chetty and others (AIR 1917 Madras 539) drawer of a promissory note payable at demand, gave an agreement in writing fixing ten months time for payment from the date of the pronote, and it was held that the time would begin to run from the expiry of the period fixed in the agreement and that the suit was governed by Article 80 of Limitation Act. In the instant case there is no separate agreement fixing the period on expiry of which the time would start running, for the purposes of limitation. In the instant case the amount in question was payable by way of monthly instalments spread over several months and each of such instalments was payable on first of each calendar month starting with 1.1.1986. Present suit was filed on 7.10.1986 when ten monthly instalments had become due but they had not become time barred. Hence the suit filed was not time barred. Date of filing the suit was 7.10.1986 but after allowing of amendment by the High Court in Revision Application No.293 of 1988, the amended plaint was filed on 25.3.1989. But the suit cannot be treated to have been filed on 25.3.1989 for the purpose of limitation because the cause of action was the same. Amended plaint cannot be said to have been based on a different cause of action. Hence it can not be said that for the purpose of computing the period of limitation, the suit shall be deemed to have been instituted on the date on which the amended plaint was filed.
13. In respect of allowing of interest learned counsel for the appellant cited the case of TERNI S.P.A.
VS PECO (Pakistan Engineering Company) Limited (1992 SCM R 2238) where it was held that Section 34 of CPC allows the grant of interest from the date of institution of the suit till the date of decree, while sections 34 & 34-B of CPC allow the grant of interest from the date of the decree to the date of payment or upto such earlier date as the Court thinks fit. It was also held that the Court by order seldom grants interest during the pendency of a suit. In the same case, it was observed that the right to interest for the period prior to the date of suit has been held by Superior Courts of U.K, Pakistan and India to be a matter of substantive law and can be allowed if there is a statutory provision, or an agreement express or implied between the parties or a mercantile usage or for some equitable consideration. In the instant about allowing of interest of bank rate is maintained but interest would be payable for the date of filing the suit till the date of recovery.
For the foregoing reasons this appeal is dismissed with costs.