1. 1 and 2. Heard the learned Advocates for the parties.
2. ' By this order I intend to dispose of Civil Miscellaneous Application No,522 of 2003 and Civil Miscellaneous Application No,857 of 2003.
3. ' Brief facts for the purpose of disposing of these applications are that the plaintiff had filed suit on the basis of five cheques issued by defendants Nos.1 and 2, under Order XXXVII, C.P.C. In the memo.
4. Of plaint, the plaintiff, stated that defendants Nos.1 and 2 are partners and carrying on business of sale and purchase of plastic Dana on commercial basis on behalf of other parties whom they approached for the purpose of investment. From the profit on such sale and purchase of plastic Dana, the defendants earned commission. The defendant No,2 was an officer working in Habib Bank Ltd. At Jodia Bazaar Branch, Karachi, where the plaintiff had an account and the defendant No,2 introduced defendant No,1 to the plaintiff as his partner for the purpose of business. The defendant No,1 suggested to the plaintiff that he can earn handsome profit by investing the amount in purchase and sale of plastic Dana which they could carry on, on behalf of the plaintiff.
5. The plaintiff on the instigation of the defendant No,2 started by way of small investment in the sale and purchase of plastic Dana which was carried on by the defendants Nos.1 and 2 and in the said circumstances defendants Nos.1 and 2 acted as implied agent of the plaintiff. It is alleged that the plaintiff entrusted the cash amount from time to time to defendants as both defendants acted jointly in the purchase and sale of plastic Dana from time to time and rendered the accounts of such purchase and sale together with profit earned on such sales. The plaintiff on receipt of profit paid the commission to the defendants for their services for the sale and purchase of the aforesaid item. The transaction of sale and purchase of plastic Dana continued by defendants as an agent of plaintiff. The defendants used to invest amount and give profit thereon sometime in cash and sometime through cheques. It is stated that each transaction was separate, assigned for the purchase and sale of plastic Dana to the defendants and on the completion of such sale, a fresh investment would be made after rendering the accounts. It is stated that in or about July or August, 2001 the defendants Nos.1 and 2 gave five cheques being Cheque No,3096826, dated 25-8-2001 for Rs,13,05,712, Cheque No,3096825, dated 1-9-2001 for Rs,17,69,055, Cheque No,57086, dated 12-7-2001 for Rs,4,33,162 issued by defendant No,1, Cheque No,235530, dated 15-7-2001 for Rs,7,21,965 and Cheque No,7667705, dated 20-7-2001 for Rs,5,84,432 issued by defendant No,2 to plaintiff. It is stated that these cheques were given by the defendants in respect of amount given by the plaintiff for the purchase and sale of plastic Dana together with profit thereon and the said cheques on their presentation were dishonoured with remarks that account closed or refer to drawer. The plaintiff filed this suit for recovery of Rs,67,77,190. The defendants Nos.1 and 2 filed leave to defend application and in the said application the defendant No,1 stated that the defendant No,1 has no business relationship of any nature with the plaintiff. It is stated that the cheques in question were issued by defendant No,1 and handed over the same to defendant No,2 in respect of some business transaction and since the said business transaction was not finalized and in order to avoid any misuse of the cheques the defendant closed the account from which the said cheques were issued. The defendant No,1 specifically denied that there was any business relationship between plaintiff and him and/or that at any time any amount has been taken by him from the plaintiff. The defendant No,2 also denied in his application for leave to defend that, neither there was any business relationship between the plaintiff and defendant No,2 nor the said cheques were issued towards the amount given by the plaintiff to purchase and sale of plastic Dana and profit earned on it. In the said affidavit the defendant No,2 stated that the cheques in question were handed over to Broker Haroon Bawa in respect of some transaction which could not be finalized and apparently Mr. Haroon Bawa has misused the said cheque and handed over the same to plaintiff.
6. ' I have gone through the memo. Of plaint, application, counter-affidavit filed by the plaintiff and it appears that, the plaintiff is claiming amount in question on the basis of same alleged, business relationship between plaintiff and defendants. In the memo. Of plaint, the plaintiff .Stated that the defendants acted as his agent in purchasing the plastic Dana for which the plaintiff invested amount. The plaintiff further alleged that he invested amount from-time to time and on each occasion the defendants rendered the accounts to him and handed over the amount with profit, some time by cheques and some time in cash. The plaintiff alongwith the plaint has not produced any single document to establish the averments made in the plaint that, the alleged amount has been invested by him at any time and/or that, at any time the defendants rendered accounts to him or paid any amount in this regard. The allegations made in the plaint can be established only by recording the evidence and I am of the view that, the defendants have made out an arguable case and are entitled to grant of application for leave to defend unconditionally." I am fortified with my view from the judgment of Muhammad Arif v. Abdul Qayyum 1991 CLC 442 in which the Honourable Court held as under:-- ' "The only question before me is whether the defendant has made out a case for grant of leave to defend and, if so, whether the leave should be conditional or unconditional. In the context of grant of leave, the Court is required to examine all questions which can or may arise by way of defence, as deducible not merely on the basis of what the defendant pleads or says in relation to his application for leave to defend but with reference to the entire record before the Court. In the first place, I am satisfied that the questions raised by the defendant on applying for leave, prima facie, have substance, merit due examination and a case for grant of leave is made out.
7. ' The rule with regard to the imposition of conditions in grant of leave is that unconditional leave cannot be granted in cases where the possibility of the defence being a sham one cannot be overlooked. On the same principle, and indeed as an extension of it, I am of the considered opinion, that the defendant would be entitled to unconditional leave where as regards the plaintiff's claim, such being frivolous, vexatious or otherwise untenable cannot be ruled out. In view of what has been urged in defence and what has been noted in this paragraph, it would not be unreasonable to entertain doubts about the plausibility of the claim in this suit and, therefore, the defendant is entitled to an unconditional leave."
8. ' The defendants made out plausible defence for grant of leave to defend unconditionally, as it is yet to be decided whether in fact the defendants acted as an agent of the plaintiff for the purchase and sale of plastic Dana, what amount in fact has been given by the plaintiff and how much profit has been earned by the defendants as an agent on it. In the suit plaintiff claims amount other than the amount of cheques issued by the defendants. The plaintiff's claim in the suit is for Rs,67,77,190, whereas cheques issued by the defendants are for Rs,48,14,326 only. The plaintiff has to prove that the plaintiff is entitled for the sum of Rs,9,62,864 as interest on cheques amount and Rs,10,00,000 as loss sustained by him. The question, which also requires consideration, is whether the suit, as framed, is maintainable, under Order XXXVII, C.P.C. As the plaintiff has claimed damages in addition to amount of negotiable instrument.
9. ' The above applications were granted by short order dated 26-5-2003 and these are the reasons therefor.