1. ' The plaintiff has filed the suit for recovery of Rs,11,72,184 together with mark-up thereon by, inter alia, the sale of the property of the defendant which has been mortgaged to the plaintiff.
2. ' The claim of the plaintiff, briefly, stated, is that the parties entered into an agreement dated 6th October, 1988, and that, in terms of that agreement, the plaintiff advanced to the defendants a sum of Rs,10,00,000 a security for repayment of which the defendants executed a promissory note dated 6th October, 1988, and also mortgaged their property mentioned in para.7 of the plaint. It is alleged that the advance payment of Rs,10,00,000 was made to the defendants in consideration for the defendants promise to supply cotton to the plaintiff but the defendants did not supply the cotton to the plaintiff.
3. ' The defendants have filed their written statement wherein it is averred that this Court has no jurisdiction until after the dispute between the parties is referred to arbitration in terms of a clause in the agreement; that the promissory note does not provide for payment of mark-up or interest; that the promissory note and the documents relating to the mortgage were singed in blank by the defendants in keeping with the past practice between the parties; that the amount of Rs,10,00,000 was paid to the defendants towards "unsettled last claim for Rs,17,42,571 of the defendant No,1" in respect of supply of cotton during the year 1986-87; and that the amount claimed by the plaintiff is not due to it but, on the contrary, the plaintiff is liable to pay the defendants a sum of Rs,9,12 271.
4. ' Upon my express query, the learned counsel for the defendants admit that the agreement and promissory note dated the 6th October, 1988 were executed by the defendants and that the defendants did receive from the plaintiff a sum of Rs,10,00,000 in terms of the agreement. The only questions which therefore remain to be tried are:
(1) Whether this Court has no jurisdiction?
(2) Whether the payment of Rs,10,00,000 was made to the defendant in settlement of a claim of the defendants as alleged by the defendants?
(3) Whether the plaintiffs are not entitled to claim mark-up/interest?
(4) Whether the documents of title relating to the property of the plaintiff were given by the defendants to the plaintiff in the circumstances alleged by the defendants?
(5) What amount, if any, is due by the defendants to the plaintiff?
5. ' The burden of proof on all the questions is on the defendants. The learned counsel however, request that the hearing be adjourned because they have not been able to contact the defendants who live in Bahawalpur. It appears from the record that the suit was filed in 1991 but the defendants could not be served until April, 1994. Thereafter the defendants filed their written statement and the suit came up for final disposal in Court on the 27th October, 1994. On that date Mr. Mamnoon Hasan stated that the copy of the written statement had not been given to him whereupon the office was ordered to ensure that a copy of the written statement and annexures thereto are supplied to Mr. Mamnoon Hasan and to fix the case for hearing after notice to the defendants' Advocate at Hyderabad. Such notice, was issued to Mr. A. Rahman Shaikh on the 17th November, 1994, for the 14th December, 1994. When the case came up on the 14th December, 1994, for final disposal Mr. A. Rahman Shaikh, stated that he had received the notice but he was not aware that a copy of the written statement had to be s .Applied to the other side. He therefore undertook to supply such a copy and the hearing was adjourned to 21st December, 1994 for final disposal. On the 21st December, 1994 Mr. A. Sattar Memon filed his Vakalatnama and requested that the hearing be adjourned. The hearing was therefore adjourned to today i,e, 22-12-1994.
6. In the above circumstances, the request for adjournment is entirely unreasonable because the learned counsel had sufficient time since 14th December, 1994, to inform the defendants that the suit had been fixed for final ' disposal and to ask for such instructions as they may have needed. Mr. Mamnoon Hasan opposes the request. I have, therefore, refused to adjourn the hearing. Both the learned counsel for the defendants now state that they are not in a position to proceed with the case because they have no instructions.
7. ' In the circumstances the pleas taken by the defendants remain unsupported by any evidence and therefore cannot be taken into account. Mr. Mamnoon Hasan has produced today the agreement dated 6th October, 1988, the Promissory Note dated 6th October, 1988, and Memorandum of Deposit dated 6th October, 1988. In view of the averments in the plaint and the documents produced by plaintiff and in view of the admission that these documents were executed by the defendants, the plaintiffs' claim in the suit stands established. Mr. Mamnoon Hasan says that the claim in the suit is for recovery of Rs,11,72,184 which includes mark-up from the date of the suit in accordance with clause 2 of the agreement dated 6th October 1988. The suit of the plaintiff is, therefore, decreed against the defendants for Rs,11,72,184 with mark-up thereon at the rate of 0.43 (Forty three paisa) per Rs,1,000 per day from the date of the suit till payment and costs of the suit. It is hereby declared that the amount due to the plaintiff from the defendant No,2 on the mortgage mentioned in para. 7 of the plaint is Rs,11,72,184 with mark-up thereon as aforesaid and costs of the suit. Let preliminary decree in Form 5-A, Appendix-D Schedule I, C.P.C. Be prepared against the defendant No,2.
8. Before parting with this case, it may be observed that the plea of the defendant that this Court has no jurisdiction in view of the agreement between the parties to refer the dispute to arbitration is obviously without merit because, firstly, an agreement to refer to arbitration does not take away the jurisdiction of the Court, and, secondly, the defendants have themselves filed a written statement and appeared in the proceedings without asking for stay of the proceedings in the suit.