AFTAB AHMAD KHAN Versus ASGHAR HUSSAIN

This is an application under Order 37 Rule 3 C.P.C. It is accompanied by an application for condonation of delay under Section 5 of the Limitation Act.

2. The plaintiff has filed this suit on the basis of a Pro-Note for Rs.1,15,000 executed by the defendant in favour of the plaintiff on 25-1-1987. The defendant had admitted that he had executed the Pro-Note. All that he has stated in his affidavit in support of his application under Order 37, Rule 3, C.P.C. is that the defendant has already paid the amount to the plaintiff and his claim already stands discharged. In support of what he has stated he has produced photo copies of two leaves from Diary alleged to be written by the plaintiff. These leaves on the contrary support the plaintiff's case and show that on 25-1-1987 there was a balance of Rs.1,15,652 in favour of the plaintiff. Even if it is taken to be correct A then also this is to be taken as the amount which was the consideration of the Pro-Note. The second leg of the arguments of Mr. Atiq Beg was that the principal amount has been returned by the defendant to the plaintiff. The amount of Rs.1,15,652 was the interest which cannot be allowed to be recovered by the plaintiff from the defendant. This argument is also not sound.

3. I, therefore, hold that this application does not show any substantial question of law or fact needing trial and the defence set up is illusory. I, therefore, dismiss C.M.A. No.408 of 1989 as well as the application for condonation of delay under Section 5 of the Limitation Act.

4. In consequence thereof I decree plaintiff's suit for a sum of Rs.1,15,000. Mr. Munib Ahmed Khan gives up the claim of any further interest. The parties to bear their own costs.

M.Y.H./A-616/K

Suit decreed.