Promissory note | order 37 suit will prevail if all the necessary ingredients of promissory note are available .
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| Promissory note | order 37 suit will prevail if all the necessary ingredients of promissory note are available . |
مقدمہ پرومسری نوٹ پر مبنی تھا اور اس کی قابل سماعتی پر اضافی رہن کے معاہدے کا کوئی اثر نہیں تھا۔
**عدالت کے ریمارکس:**
1. **وعدہ نامہ کی تعریف:** عدالت نے تصدیق کی کہ 06.10.2015 کی تاریخ والا دستاویز پرامسری نوٹ کی تعریف پر پورا اُترتا ہے، جیسا کہ Negotiable Instruments Act، 1881 کے سیکشن 4 میں بیان کیا گیا ہے۔ اس میں ایک غیر مشروط وعدہ شامل ہے کہ ایک مخصوص رقم ادا کی جائے گی، اور یہ دستخط شدہ ہے۔
2. **مقدمے کی دائرہ اختیار:
** عدالت نے وضاحت کی کہ پرامسری نوٹ پر مبنی مقدمہ آرڈر XXXVII رول 2 سی پی سی کے تحت قابل سماعت ہے، چاہے اضافی سیکیورٹی کے طور پر رہن کا معاہدہ بھی ہو۔ رہن کے معاہدے کی موجودگی، پرامسری نوٹ کے نفاذ کے لیے سمرری دائرہ اختیار پر اثر انداز نہیں ہوتی۔
3. **دوہری مراعات:**
عدالت نے تسلیم کیا کہ قانون قرض دہندہ کو دوہری مراعات فراہم کرتا ہے:
ایک وعدہ نامہ پر مبنی وصولی کے لیے آرڈر 37 سی پی سی کے تحت اور دوسری رہن کے نفاذ کے لیے آرڈر 34 سی پی سی کے تحت۔ رہن کا معاہدہ ہونے کی صورت میں بھی وعدہ نامہ پر مبنی مقدمے کی قابل سماعتی متاثر نہیں ہوتی۔
4. **پہلے کے مقدمات:
** عدالت نے سابقہ مقدمات کا حوالہ دیا، جیسے *Hatimbhai vs. Karimbhai* اور *Sindh Engineering & Bangle Works Hyderabad vs. Habib Bank Ltd*، تاکہ یہ واضح کیا جا سکے کہ وعدہ نامہ پر مبنی مقدمہ اضافی سیکیورٹی کے باوجود جاری رہ سکتا ہے۔
5. *نتیجہ:*
* عدالت نے فیصلہ دیا کہ پرامسری نوٹہ پر مبنی مقدمہ آرڈر VII رول 10 سی پی سی کے تحت واپس نہیں ہونا چاہیے تھا۔ عدالت نے impugned حکم کو کالعدم قرار دیتے ہوئے مقدمہ کو دوبارہ سیشن جج، لاہور کے پاس بھیجنے کا فیصلہ کیا تاکہ مقدمے کی جلد سماعت اور قانونی اصولوں کے مطابق فیصلہ کیا جا سکے۔
یہ ریمارکس عدالت کی طرف سے اس بات کی وضاحت کرتے ہیں کہ مقدمہ وعدہ نامہ پر مبنی تھا اور اس کی قابل سماعتی پر اضافی رہن کے معاہدے کا کوئی اثر نہیں تھا۔
Must read judgement
C.R.No.33725/2019
Form No: HCJD/C-121
ORDER SHEET
IN THE LAHORE HIGH COURT
LAHORE.
JUDICIAL DEPARTMENT
Civil Revision No.33725/2019
Muhammad Zaheer
Vs.
Abdul Majeed
S. No. of
order/
proceeding
Date of
order/
proceeding
Order with signature of Judge, and that of
parties or counsel, where necessary.
08.9.2021. Mr. Abdul Waheed Zaman Qureshi,
Advocate for the petitioner.
Respondent already proceeded against
exparte on 16.9.2019.
This Civil Revision under section 115 CPC
has been filed against the order dated 07.3.2019
passed by learned Additional District Judge, Lahore
whereby suit filed by the petitioner against the
respondent under Order XXXVII Rule 2 of the
Code of Civil Procedure, 1908 (CPC) was returned
under Order VII Rule 10 CPC for presentation
before appropriate forum.
2.
Brief facts are that petitioner filed a suit
against the respondent Under Order XXXVII Rule 2
CPC on the basis of pro-note and receipt dated
06.10.2015, for recovery of loan amount of
Rs.402000/- alongwith monthly profit/rent of
C.R.No.33725/2019
Rs.24000/-. The petitioner in plaint also referred to
additional security of mortgage deed dated
06.10.2015 of house measuring two marlas in
respect of said loan amount. In response to notice,
the respondent appeared in person in said suit,
however, subsequently, failed to pursue the matter,
hence proceeded against exparte. Learned trial
Court recorded the evidence of the petitioner and his
witnesses as PW-1 to PW-3 who also produced
documents including pro-note, receipt and mortgage
deed as EX-P1 to EX-P3. However, after
considering the documentary and oral evidence,
through impugned order, the suit was returned under
Order VII Rule 10 CPC for presenting the same
before appropriate forum. The petitioner being
aggrieved filed this revision petition.
3.
Learned counsel for the petitioner submits
that petitioner suit was mainly based on pro-note
and the mortgage deed was only presented as
additional security, therefore, the plaint could not be
returned. Despite notice, none appeared on behalf of
the respondent to contest this matter, who has
C.R.No.33725/2019
already been proceeded against exparte on
16.9.2019.
4.
Arguments heard. In this civil revision, there
are two legal questions which require determination
by this Court: Firstly, whether the document dated
06.10.2015 fall within the definition of promissory
note: Secondly, if beside promissory note, an
additional instrument of mortgage has been
executed regarding the same loan amount, whether
suit under Order XXXVII Rule 2 CPC was
proceedable.
5.
Regarding first question, there is no cavil
with the legal proposition that suit under Order
XXXVII Rule 2 CPC can be filed in respect of
negotiable instruments which includes promissory
notes. The promissory note is defined under section
4 of the Negotiable Instruments Act, 1881 (Act) as
under:-.
“Promissory note.” A “promissory note” is
an instrument in writing (not being a banknote or a currency note) containing an
unconditional undertaking, signed by the
C.R.No.33725/2019
maker, to pay [on demand or at a fixed or
determinable future time] a certain sum of
money only to, or to the order of, a certain
person, or the bearer of the instrument”.
6.
Plain reading of above definition shows that a
document shall be regarded as promissory note if it
fulfills the following requirements:-
(i)
An unconditional undertaking to pay,
(ii) The sum should be a sum of money and
should be certain,
(iii) The payment should be to or to the order of a
person who is certain, or to the bearer, of the
instrument,
(iv) And the maker should sign it,
If all above four conditions are present, the
document become a promissory note under section 4
of the Act. The perusal of document dated
06.10.2015 (EX-P1) shows that respondent
unconditionally undertook to pay Rs.402000/- to the
petitioner alongwith Rs.24000/- per month as
profit/rent. The above document is also duly signed
by the respondent. The document dated 06.10.2015
C.R.No.33725/2019
(EX-P1) on face of it is an unconditional
undertaking by respondent to pay certain amount of
money to petitioner and being also duly signed by
respondent, undoubtedly fulfills the essentials of
promissory note under section 4 of the Act.
7.
In respect of second legal question, no doubt,
the petitioner in his plaint referred to mortgage deed
dated 06.10.2015 as additional security. However,
the prayer clause of the plaint shows that the
petitioner is only seeking money decree on the basis
of pro-note and not for recovery of amount by
selling the mortgage property on the basis of
mortgage deed. Indeed suit for the enforcement of
mortgage deed could only be filed in ordinary
jurisdiction under Order XXXIV Rule 14 CPC,
however, mere fact that petitioner has secured the
repayment of the loan amount by way of mortgage
in addition to pro-note, would not deprive the
petitioner to enforce recovery of loan on the basis of
pro-note. However, Order XXXIV Rule 14 CPC
provides that where a mortgagee has obtained a
decree for the payment of money in satisfaction of a
claim arising under the mortgage, he shall not be
C.R.No.33725/2019
entitled to bring the mortgage property to sale
otherwise than by instituting a suit for the sale in
enforcement of mortgage and he may institute such
suit notwithstanding anything contained in Order II
Rule 2 CPC.
8.
The law thus provide dual remedy to the
petitioner by filing a suit under Order XXXVII Rule
2 CPC on the basis of pro note and suit under Order
XXXIV Rule 14 CPC for enforcement of mortgage
deed and such suit is not barred by Order II rule 2(b)
CPC. Therefore, mere fact that mortgage deed has
been executed in addition to a pro-note will not
exclude the summary jurisdiction of Court under
Order XXXVII Rule 2 CPC for the enforcement of
promissory note.
9.
Similar proposition came up before learned
Division Bench of Sindh High Court in Hatimbhai
vs. Karimbhai (1993 MLD 988) where the plaintiff
had sought a decree on the basis of promissory note
and mortgage. The learned Single Bench proceeded
to decree the suit in accordance with the provision
C.R.No.33725/2019
of Order XXXVII CPC. The learned Division
Bench upheld the said order and held as under:-
“The claim in the suit was based on the said
mortgage as well as the said promissory notes, as is
evident from the plaint filed in the suit. The prayer
clause in the plaint further indicates that the decree
sought by the respondent was a money decree, or in
the alternative, a decree based on the said mortgage.
Thus, there were two distinct and separate claims
made by the respondent in the plaint which could be
dealt with by the Court by following different
procedures, one embodied in Order 34 and the other
in Order 37 of the C.P. Code. The judgment, dated
29-9-1986, shows that the learned Single Judge by
following the procedure laid down in Order 37,
C.P.C. decreed the suit in favour of the respondent.
The decree passed by the learned Single Judge in the
suit was a simple money decree, which was not based
on the mortgage, but the same was based on the
claim under the promissory notes, notwithstanding
the reference by the learned Judge to the mortgage as
well. However, it is clear that only the part of the
claim which was based on the promissory notes was
considered by the learned Judge which resulted into
passing of the said decree. Rule 14 of Order 34
would be applicable only when a claim arises under
a mortgage, which obviously does not appear to be
the case in the case in hand, as just pointed out by us.
Consequently, we are unable to agree with Mr. SA.
Samad Khan that the order passed by the learned
Judge is liable to be recalled as the order passed by
the learned Single Judge is unassailable: H.CA. No.
107/1990 is therefore, liable to be dismissed”.
10. In like manner in Sindh Engineering &
Bangle Works Hyderabad etc vs. Habab Bank Ltd
(PLD 1993 Karachi 38), the learned Court held that
merely because the appellants had secured the
repayment of the loan by mortgage in addition to
promissory note, would not deprive the respondent
to enforce the recovery of the loan on the basis of
C.R.No.33725/2019
the promissory note. The relevant observation is
reproduced hereunder:-
“Merely the fact that the appellants had
secured the repayment of the loan by mortgage
in addition to promissory note, would not
deprive the respondent to enforce the recovery
of the loan on the basis of the promissory note.
The only bar in this regard is contained under
Order XXXIV, Rule 14, C.P.C. which provides
that where a mortgagee has obtained a decree
for the payment of money in satisfaction of a
claim arising under the mortgage, he shall not
be entitled to bring the mortgaged property to
sale otherwise than by instituting a suit for sale
in enforcement of the mortgage. Under such
circumstances the creditor would be required
to file a separate suit for recovery of the
amount from the mortgaged property on the
basis of the mortgage. The law thus provides
dual protection to the creditor.”.
Similarly in M/s Nagina Cotton Industries etc vs.
Cotton Export Corporation of Pakistan (1994 CLC
2281), learned Court held that reliance on additional
supporting documentary material other than the
promissory note will not take the suit out of the
jurisdiction of Court under Order XXXVII CPC.
11. From the above discussion, it is evident that
suit on the basis of promissory note will be filed
under Order XXXVII CPC and suit on the basis of
mortgage will be governed under Order XXXIV
CPC. The above case law also established beyon
C.R.No.33725/2019
doubt that the suit filed by the petitioner on the basis
of promissory note dated 06.10.2015 (EX-P1),
which is a self executable document, was
maintainable under Order XXXVII rule 2 CPC and
mere fact that mortgage deed has been executed as
an additional security in respect of the same loan
amount, will not render the suit liable to be returned
under Order VII Rule 10 CPC.
12. In view of above discussion, the instant civil
revision is allowed. Resultantly, while setting aside
the impugned order dated 07.3.2019, the matter is
remitted to the learned Additional District Judge,
Lahore where the same shall deem to be pending for
its early decision on merits in accordance with law.
The original files shall be returned by the office to
the relevant Court.
(ABID AZIZ SHEIKH)
JUDGE.
Approved for Reporting.
JUDGE.