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Suit No. 163 of 1984, decided on 16^th October, 1984.

---O. XXXVII, rr. 1 & 3--Suit for recovery of money on basis of negotiable instruments--Application for leave to defend, time barred- Application made under S. 151, C . P . C . for extension of time to file written statement, held, misconceived because defendant was not entitled to file such statement without first obtaining leave of Court to appear and defend--Suit decreed with costs and interest--Defendant having shown his bona fides by offering part payment before institution of suit and by not raising any vexatious plea, allowed to make payment of decretal amount by instalments, as prayed.

Liaquat Merchant for Plaintiff.

Muhammad Naseem for Defendant.

Date of hearing: 16th October, 1984.

This is a suit for recovery of Rs.1,71,085 filed under Order XXXVII, C.P.C. by the plaintiff against the defendant. The suit is based upon four cheques which when presented were returned dishonoured with the remarks "Not arranged for", "Exceeds arrange ment".

2. The defendant has filed an application under Order XXXVII, rule 3, C.P.C. praying therein that they may be allowed to defend the suit unconditionally for the reason mentioned in the affidavit. The defendant was served with the summons in the prescribed form on 26^th April, 1984 but the abovementioned application was not filed until 25^th September, 1984 i.e. much beyond the period prescribed by Article 159 of the Limitation Act.

An application under section 151 C.P.C. dated 12-9-1984 appears to have been moved by the defendant for granting extention of one month for filing written statement on the plea that the advocate for the defendant had gone out of the country and that the defendant in view of Eid Holidays had not been in contact with his said Advocate since his arrival.

3. This order would dispose of both the abovementioned applications filed by the defendant.

4. In support of the application for grant of permission to appear and defend the suit the learned counsel for the defendant conceded that the said application is barred by time. He however submitted that the defendant delivered to the plaintiff pay order, dated 6-2-1984 for Rs.50,000 but the same has not been encashed and thus the plaintiff has not come -to the Court with clean hands.

Mr. Liaquat Merchant, Advocate for the plaintiff however submitted that the said pay order was encashed on 30^th September, 1984. Mr. Muhammad Nasim, the learned counsel for the defendant in view of the above statement submitted that in any case the plaintiff would not be entitled to payment of any interest on the sum of Rs.50,000 from 6-2-1984 when the Pay Order was delivered to the plaintiff but was not encashed for any valid reason. To this proposition Mr. Liaquat Merchant frankly conceded.

No other point was urged by Mr. Muhammad Nasim, Advocate who however requested that the defendant may be allowed to pay the decretal amount in instalments.

5. Before concluding it may be observed that the application made by the defendant under section 151 C.P.C. for extension of time to file written statement was misconceived. The defendant was not entitled to file written statement without first obtaining leave of the Court to appear and defend the suit.

The referred application made for granting time to file written statement is accordingly rejected as not maintainable.

6. The application made under Order XXXVII, rule 3, C.P.C. being time barred and disclosing no triable issue is also dismissed. The plaintiff would thus be entitled to a decree. Since however the plaintiffs admit that pay order, dated 6-2-1984 for Rs.50,000 was received by them prior to the filing of the suit and that the said pay order has since then been enhanced, the defendant is entitled to be given adjustment for the said amount.

The suit is accordingly decreed against the defendant for Rs.1,21,085 with proportionate costs and interest at the rate of 14% per annum from the date of the suit till payment.

7. As earlier noted, before passing of the decree Mr. Muhammad Nasim, Advocate on behalf of the defendant prayed that the decretal amount easy be allowed to be paid in instalments. The defendant has not raised any vexatious plea. On the contrary the defendants has shown its bona rides by making payment of Rs.50,000 by pay order even before the suit was instituted but for which no adjustment was given to it. In my opinion in the circumstances it is a fit case in which the defendant is entitled to grant of indulgence prayed for. Accordingly the defendant is allowed to make payment of the decretal amount in monthly instalments for Rs.20,000. The first instalment shat be payable on or before 1-12-1884. Every instalment thereafter shall be paid on or before 1^st day of each succeeding month. In case of default in payment of any two instalments within the time fixed as above the balance amount then due under the decree shall become payable forthwith.

M. I. -----

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