1. ' Plaintiff filed this suit against defendant for recovery of Rs,11,50,000.
2. ' Brief facts of the case are that the plaintiff granted loan of Rs,11,50,000 to the defendant and defendant executed a promissory note, dated 7-2-2001, undertook to pay Rs,11,50,000 on demand.
3. As per averments made in ' the plaint, the defendant was required to pay said amount after two months of the execution of the said promissory note. It is further stated that defendant issued cheque, dated 5-5-2001 for a sum of Rs,5,00,000, which cheque was dishonoured on its presentation on 16-5-2001. The defendant thereafter again issued a cheque of Rs,6,50,000, dated 1- 6-2001 and the same was also dishonoured when presented for encashment on 2-6-2001.
4. ' The plaintiff filed suit under Order XXXVII, rule 2, C.P.C. For the recovery of Rs,11,50,000 with interest and profit thereon. Defendant filed leave to defend application being C.M.A. No,9372 of 2001 and it is stated in affidavit in support of application that the alleged promissory note, receipt and cheques were obtained from the defendant by force and under duress by the plaintiffs husband, namely, Saeed-ul-Hassan under the threat of C.I.A., Police of involving the defendant in false cases. It is stated that due to harassm ent of the plaintiffs husband, the defendant filed Constitutional Petition No,D-368 of 2001 in this Court against the husband of the plaintiff, CIA officials and otheRs, It is stated that the receipts and cheques produced by the plaintiff are without consideration and the same were obtained with coercive and unlawful methods. It is alleged that the plaintiffs husband contributed amount in the business of defendant on profit and loss basis and due to loss in the business plaintiffs husband did not settle accounts and thought it fit to adopt unlawful method.
5. Defendant seeks leave to defend on the basis of these allegations. Alongwith the application for leave to defend defendant filed copy of memo. Of Constitutional Petition No,D-368 of 2001.
6. ' Heard learned Advocates of the parties.
7. ' I have gone through the contents of affidavit in support of application as well as the memo. Of petition and it appears that the defendant stated in the said petition that on 10-9-2001 between 11 a.m. To 12 noon the defendant was called at C.I.A. Centre, Saddar, where the defendant was pressurized to nay outstanding dues of husband of the plaintiff. He was further threatened that in case the defendant fails to pay the amount the defendant will be involved in criminal cases. The defendant was asked to come again on 11-9-2001. It is stated that on 5-6-2001 at about 3-30 p.m.
8. One Manzoor Ahmed Lehri (one of the respondents in Constitutional petition), who also contributed/invested amount in defendant's business alongwith some other person, who xlaimed to be CIA, Police, came to the defendant's show-room and got signed some agreement and cheques from the defendant by force, and then on 23-5-2001, the plaintiffs husband alongwith some other CIA officials came at the residence of the defendant, arrested him illegally and got executed by the defendant some documents and cheques under great pressure and threats.
9. ' The petition was disposed of by this Court on the statement of S.H.O., Defence Police Station and also by S.-I. Riaz-ul-Haq, who was impleaded as respondents in the said petition that neither the petitioner is involved in any case nor they want him. They further stated that they have not caused any harassm ent to the petitioner. On the basis of such statements of the respondents the petition was disposed of on 24-9-2001.
10. ' In leave granting application the defendant seeks leave to defend the suit on two grounds, (i) that the documents, being promissory note and cheques, were got executed by force and under duress and (ii) the same are without any consideration.
11. ' In support of his contention that the documents were got executed by force and under duress, the learned counsel for the defendant relied upon para. 11 of memo. Of Constitutional Petition No,D-368 of 2001, wherein the defendant had stated as under:-- "11.That on 23rd May, 2001, at about 10 a.m., the respondents Nos,3 and 4 (husband of plaintiff), alongwith some other persons who claimed C.I.A., Police Officials (plain dress), came at the residence of the petitioner and arrested him illegally, used abusive language, Respondents and particularly respondents Nos,3 and 4, with the help of other armed person got executed some documents and cheque from the petitioner, under great pressure, threat and thereafter released the petitioner, giving him further threats of arrest in near future in false case."
12. ' In the counter-affidavit, filed by the plaintiff, the plaintiff produced photocopy of the passport of her husband and produced the original of the same during the course of the arguments. From the perusal of the passport it appears that the plaintiffs husband left Pakistan on 21-5-2001 and re- entered on 12-7-2001. During all this period (i,e, 21-5-2001 to 12-7-2001) the plaintiffs husband remained in U.A.E. On the basis of this document the defendant's entire story comes to ground and cannot be believed that the promissory note and cheques were got executed by the husband of the plaintiff under duress on 23-5-2001.
13. ' As regards the second contention of the learned counsel for the defendant that these promissory notes and cheques were issued without consideration, burden lies on the defendant to prove the same. Under section 118 of the Negotiable Instruments Act, 1881, there is an initial presumption that a negotiable instrument is made, drawn, receipted on endorsement for consideration. Although this presumption is a rebuttable presumption, yet the onus is on the person denying consideration to allege and prove the same. The defendant failed to discharge the said burden.
14. ' The learned Advocate for the defendant relied upon Hail Abdul Whaid v. Hoechst Pakistan Ltd. And others (1993 CLC 1291). The brief facts of the case, on the basis of which Judgment has been given, are that respondent Messrs Hoechst Pakistan Ltd. (filed suit for recovery of Rs,5,55,032.75 under Order XXXVII, rule 2, C.P.C.) have common dealers for sale of the goods by agreement with right to assign their rights and obligations to each other. The defendant's case was that during the course of their business defendant placed order for supply of goods with them at Karachi and upon receipt of orders plaintiff supplied goods to defendant on credit on various dates. According to the plaintiff a sum of Rs,4,78,476.51 remained unpaid and defendant issued cheques which were dishonoured. The learned Single Judge expressed the view that defendant has raised many legal and technical points which required trial and granted leave conditionally. The defendant filed appeal against said order, which was accepted and unconditional leave was granted, on the principle that if defendant raised many legal and technical points which require trial, then leave should be granted unconditionally.
15. ' In my humble opinion the principle laid down in the above-cited case cannot be applied to the present case. In the instant case the defendant stated that promissory note and cheque were got executed by the husband of plaintiff on 23-5-2001 under duress, whereas on the said date the plaintiffs husband was not in Pakistan.
16. ' In the case of Messrs National Security Insurance Co. Ltd. And others v. Messrs Hoechst Pakistan Ltd. (1992 SCM R 718), the Hon'ble Supreme Court has held: "Under Order XXXVII, rule 3 of the Code, before the Court can grant leave to a defendant to appear and defend a suit, it must prima facie find from his application and affidavits that there is reasonable material which makes it incumbent on the plaintiff to prove consideration 'or there is a plausible defence or some specific question of fact or law which required to be tried or investigated."
17. (Underlined are mine).
18. ' In the case of Allied Bank of Pakistan v. Messrs Faiz Ahmad-Manzar Ahmad and others (PLD 1985 Lahore 188), it has been held: "From the above provisions it emerges that the grant of leave to defend a suit filed under Order XXXVII, C.P.C. Is not a matter of course or a matter of right. In order to be eligible for this benefit the defendant will have to show such facts which may warrant the proving of the consideration by the plaintiff or disclose a plausible defence which may give rise to triable issues. This necessarily implies that granting of permission to defend the suit or refusal thereof shall be dependent on the attendant circumstances of each case and as such no hard and fast rule could be laid for the purpose. However, some broad principles which could be a guideline for the Courts while considering an application for leave to defend can be and have, in fact, been laid down in judicial precedents and lie scattered therein. In this judgment I propose to succinctly bring out those guidelines in the light of the aforementioned provisions and the judgment of the Supreme Court on the subject."
19. ' The Hon'ble Court further held following broad principle for determining the controversy regarding grant or refusal of leave to defend suit under Order XXXVIII, C . P. C. :
(a) Leave shall be refused if no defence worth the name is made out on facts or in the application for leave to defend,
(b) leave shall also be refused if the defence disclosed on affidavits is sham or colourable or illusory/ imaginary and may not give rise to triable issues. Needless to add that in both the above events, a decree shall follow in the suit,
(c) if a defence is disclosed on affidavits which may warrant putting the plaintiff to prove consideration, leave shall be granted,
(d) where the defendant discloses upon his affidavits a case, which may constitute a plausible defence or shows that there is some substantial question of fact or law, which needs to be tried or investigated into, then also the defendant shall be entitled to leave to defend.
20. ' The permission to appear and defend a suit in any of the cases falling under sub-paras. (c) and (d), above may be unconditional or subject to such conditions/terms as may be imposed by the Court;
(e) if the defence set up is found to be vague or unsatisfactory or ingenuine on cursory perusal, leave may not be refused altogether, and if it be felt that there may be prima facie triable issues arising out of the defence disclosed, leave may be granted but on terms as may be considered necessary by the Court."
21. ' The defendant failed to make out any case for grant of leave to defend. The grounds taken are illusory and I cannot grant leave to defend on such illusory allegation, as such the application is dismissed and plaintiffs suit is decreed in the sum of Rs,11,50,000 with no order as to costs.