1. ' This is a suit for recovery of Rs,6,82,409 and the brief facts leading to the filing of the suit are that plaintiff, which is a private limited company at all times material to the suit and till 31-3-1976, had three shareholders including the defendant Haji Sharif Khan who during the pendency of this suit expired and his legal heirs have been brought on record.
2. ' It is the case of the plaintiff that one Haji Abdul Rasheed and the defendant had formed themselves into a group and acted in collaboration with each other. On 31-3-1976, the defendant and the said Haji Abdul Rasheed resigned as directors of the plaintiff-company and transferred their entire shareholdings in the plaintiff. During the time the defendant and Haji Abdul Rasheed were directors of the plaintiff-company they had drawn and taken large sums of money as personal loan from the plaintiff-company details of which have been given in para. 2 of the plaint wherein it has been averred hat on 10-7-1975 and 9-3-1976 a sum of Rs,15,165 ad Rs,6.67,244 respectively was drawn and taken as loan by the defendant and on the strength of a payment voucher, dated 9-3-1976 which was signed by the defendant himself and Haji Abdul Rasheed as directors. The amount of Rs,6,67,244 was drawn by the defendant through Cheque No,ADK 810419, dated 9-3-1976 drawn on Habib Bank Limited, Safe Deposit Vault Branch, Victoria Road, Karachi.
3. The defendant, it is alleged, failed to repay the amount drawn by the defendant from the plaintiff- company as loan with the result that sum of Rs,6,82,409 is due and payable by the defendant to the plaintiff-company.
4. ' The defendant was served and filed his written statement wherein it has been, inter alia, stated that the defendant and said Haji Abdul Rasheed did not resign as directors of the plaintiff- company and the third director of the plaintiff, namely, Raja Abdur Rehman by using illegal and coercive methods ousted the defendant and Haji Abdul Rasheed from the company. The taking of loan as alleged by the plaintiff has been denied categorically by the defendant and it has been averred by the defendant in his written statement that the said sum was drawn by an employee of the plaintiff and not by the defendant in connection with the business of the company. The cheque of Rs,6,67,244 was encashed from the account of the company by an employee of the plaintiff, namely, Ghulam Akbar, whose signature appeared on the reverse of the cheque. In so far as other amount of Rs,15,165 is concerned, it has been stated by the defendant in his written statement that the plaintiff with mala fide intention has failed to produce the alleged cheque or payment voucher, if any, in respect of the alleged loan. It is further averred by the defendant in his written statement that the third director Raja Abdur Rehman who is illegally in de facto control of the company has personal enmity with him and the present suit has been filed as a counterblast of Suit No,318 of 1996 filed by the defendant against the said Raja Abdur Rehman.
5. ' On the pleadings of the parties the following issues were adopted by the Court: "(1) Whether the defendant took a loan of Rs,6,67,244 from the plaintiff-company on the strength of a payment voucher, dated 9-3-1976 signed by him?
(2) Is the said payment voucher, dated 9-3-1976 a false document as alleged by the defendant in para. 2 of the written statement?
(3) Whether defendant took a loan of Rs,15,165 from the plaintiff-company, dated 10-7-1975 to pay his income-tax?
(4) To what decree, if any, is plaintiff entitled?"
6. ' The plaintiff examined one Muhammad Aslam Awan, an Office Assistant of M/s. Raja Group Industries, as Exh. P.W.-1 who produced photostat copy of voucher, dated 9-3-1976 as Exh. P.W.1/2, Photostat copies of ledgers as Exhs. P.W.1/3 to P.W.1/5 and photostat copy of cheque, dated 9-3- 1976 for a sum of Rs,6,67,244. The defendant examined one Ghulam Akbar Khan Lashari as Exh.
7. D.W.-1 who produced typed copies of balance-sheets of the plaintiff as at 16-3-1976 as Exhs.
8. D.W.1/1-A and D.W.1/3 and during the course of his cross-examination copies of balance-sheets as at 31-10-1976 was also produced by this witness as Exhs. D. W .1/4-A and D .W .1/4-B.
9. ' I have heard Mr. Farogh Naseem, Advocate for defendant but could not hear the plaintiff's counsel as Mr. Sayeed A. Shaikh, Advocate, in spite of notice of intimation, chose not to appear in Court.
10. ' My findings on the above issues are as under: Issues Nos.1 and 2: ' The plaintiff, as stated above, examined Muhammad Aslam Awan, an Office Assistant of M/s. Raja Group of Industries who is the examination-inchief by way of affidavit-in-evidence reiterated the contents of the plaints. The said witness of the plaintiff in his cross-examination has admitted that: "(a) It is correct that Haji Sharif Khan did not take Rs,15,165 and Rs,6,67,244 in my presence.
(b) I was not present when the resolution Ex.h.P.W.-1/1 was passed and the same was received by me on the day I swore the affidavit-in-evidence. It is correct that the block for 'payment received' in the voucher (Exh.P.W.-1/2) is empty.
(c) It is correct that whenever payment was made to any person in the company he used to put his signature on receipt/voucher.
(d) There is a voucher for Rs,15,165 and it is incorrect to suggest that there is no such voucher.
(e) It is correct that there was dispute between Raja Abdul Rehman, Haji Sharif Khan and Haji Abdur Rasheed about the directorship of the company."
11. ' In the background of the aforesaid statement of the witness of the plaintiff, I now proceed to examine the documents brought on record by the plaintiff through this witness. Exh.P.W.1/2 is a photostat copy of a voucher of the plaintiff-company. Although name of the defendant is mentioned at the top of this voucher but it is not signed by the defendant. Exh.P.W.1/3 is a photostat copy of the ledger of the plaintiff containing an entry of Rs,6,67,422 but the name of the defendant is missing from the same. Exh.P.W.1/4 is a photostat copy of the ledger containing an entry of Rs,15,165 which was debited in the account of the defendant. Exh.P.W.1/5 is again a photostat copy of the ledger of the plaintiff wherein an entry against the name of the defendant in respect of Rs,6,67,244 has been repeated. Exh.P.W.1/6 is photostat copy of a cheque of Rs,6,67,244 issued by the plaintiff on the back of which signatures of Ghulam Akbar are said to have appeared. From the description of the aforesaid documents it is abundantly clear that the plaintiff has failed to establish that the alleged loan of Rs,6,67,244 was disbursed/received/taken by the defendant from the plaintiff-company inasmuch as the voucher Exh.P.W.1/2 and reverse of the cheque, Exh.P.W.1/6 does not bear signatures of the defendant. Furthermore, in view of admission of D.W.1, Ghulam Akbar Khan Lashari, an ex-employee of the plaintiff who was examined by the defendant, to the effect that Exh.P.W.1/6 was given to him by the plaintiff for encashment from the Bank and after receiving the money from the Bank same was paid/handed over by him to the cashier of the plaintiff. I am of the opinion that the plaintiff has failed to establish payment of Rs,6,67,244 as loan or otherwise to the defendant. It may be stated that an attempt was made by the learned counsel for the plaintiff to prove the case of the plaintiff by producing balance-sheets as at 31-10-1976 of the plaintiff-company through witness of the defendant as Exh.D.W.1/4-A and D.W.1/4-B. In so far as Exh.D.W.1/4-A is concerned it may be stated that in the column of "other debtors" a sum of Rs,16,59,056.73 is mentioned. This entry is sought to be proved by the plaintiff through Exh.D.W.1/4 which contains details of sundry debtors of the plaintiff as at 31-10-1976 wherein a sum of Rs,6,82,439 is reflected against the name of the defendant. In respect of the said two documents brought on record by the plaintiff through the witness of the defendant it may be stated that Exh.D.W.1/4-B is not signed by the chartered accountant of the plaintiff and as such no reliance can be placed on the same. Furthermore, the documents Exh.1/4-A and Exh.D.W.1/4-B have not been legally proved inasmuch as neither the director of the plaintiff who has signed Exh.1/4-A nor its author, the chartered accountant, has been produced in Court as a witness and as such in my view the said two documents are of no help to the case of the plaintiff.
12. There is another aspect of the matter. The plaint is signed and verified by one Chaudhry Muhammad Akhtar who claims himself to be the Chief Executive and Principal Officer of the plaintiff in whose favour a board resolution, dated 24-10-1977 is alleged to have been passed by the plaintiff-company but the plaintiff did not examine said Chaudhary Muhammad Akhtar as its witness and instead one Muhammad Aslam Awan was produced in Court. The defendant in their written statement has denied in categorical terms the allegation in respect of taking loan from the plaintiff which are subject-matter of this suit and as such the burden to prove lies very heavily on the plaintiff. In my view, such burden could only have been discharged by the plaintiff by producing a witness who had personal knowledge of taking of loan by the defendant from the plaintiff. From the statement of Muhammad Aslam Awan examined by the plaintiff in Court it is apparent that the said witness had no personal knowledge of taking of loan by the defendant from the plaintiff and deposition of the said witness is based on the document in possession of the plaintiff.
13. ' By denying the taking of loan the defendant did successfully create a suspicion in respect of the allegations of taking of loan by the defendant and, as such, it was incumbent upon the plaintiff to produce in Court as witness the person who had personal knowledge of taking of the loan by the defendant from the plaintiff. In view of non-examination of the person having personal knowledge of the taking of loan, the plaintiff has failed to dispell the suspicion attached to its case.
14. Under the circumstances, I am of the opinion that plaintiff has failed to counter the assertion of the defendant in respect of non-taking of the loan by the defendant from the plaintiff. If any case-law on this point is required reliance can be placed on the case of Muhammad Sharif Khan v. Mst.
15. Ismat Bi and 4 others (PLD 1982 SC (AJ&K) 76 and Muhammad Rafique v. Muhammad (1989 CLC 1318).
16. ' In view of the foregoing, I am of the firm opinion that the plaintiff has failed to prove that a loan of Rs,6,67,244 was taken by the defendant from the plaintiff on the strength of payment voucher, dated 9-3-1976 and as such Issue No,1 is answered in the negative. In so far as Issue No,2 is concerned it may be stated that the payment voucher, dated 9-3-1976 is neither here nor there inasmuch as the same is not signed by the defendant and as such I refrain myself from recording any finding in respect of falsehood or otherwise of the same.
17. Issue No,3: This issue relates to taking of loan of Rs,15,165 by the defendant from the plaintiff on 10-7-1975 to pay his income-tax dues. Neither any receipt/payment voucher nor any other documentary evidence of any nature whatsoever has been produced by the plaintiff to substantiate its claim in respect of loan of Rs,15,165 alleged to have been taken by the defendant from the plaintiff and as such I am of the considered view that the plaintiff has failed to prove the taking of alleged loan of Rs,15,165 by the defendant from it. Issue No,3 is, therefore, answered in the negative. Issue No,4: ' In view of my above findings, the plaintiff has failed to prove its case and the suit is dismissed with no order as to costs.