M. Y. MALIK & CO. and 2 others vs SPENDLOURS INTERNATIONAL

ORDER

1. ' NASIM HASAN SHAH, J.---This review petition is directed against the judgment passed by this Court dated 12-1-1991 in Civil Appeal No, 224 of 1988 whereby the appeal of the petitioner herein (CA. No, 224 of 1988) was dismissed.

2. ' The learned counsel for both the parties have been heard at great length on the merits and this review petition is, accordingly, being decided on merits.

3. ' In the appeal preferred by the petitioners, it was pointed out that the High Court had confined their attention only to the following claims:

(a) Rupees 50,000 paid to Mrs. Azra Shaikh;

(b) Rupees Two Lacks paid to Azam Qureshi; and

(c) Rupees Seven Lacks on account of pledged goods; but had erroneously disallowed the above claims of the petitioners and this Court while agreeing with the findings of the High Court, disallowing the above claims, had committed errors which were patent on the face of the record.

4. ' Now after having heard the learned counsel for the parties again, we are inclined to agree that the High Court was not indeed justified in disallowing the claim of Rs,50,000 which the petitioners claimed to have paid to Azam Qureshi and that these claims were erroneously disallowed.

5. However, we are still of the opinion that the amount of Rs,7,00,000 claimed on account of pledge goods by the petitioners was correctly disallowed.

6. ' While disallowing the claim for Rs,50,000 paid to Mrs. Azra Shaikh it is to be noted that though the payment of Rs,50,000 to Mrs. Azra Shaikh was admittedly established but it was disallowed on the ground that it had not been proved that this amount was paid towards the discharge of liability of the petitioners-firm.

7. ' The following observations of the High Court were quoted with approval: "Under the agreement the respondents (appellants) were to discharge the liabilities of the firm and they were not obliged and required to discharge their personal or extraneous liabilities. Mst. Azra Sheikh was not a creditor of the firm and nothing was due to her from the firm. Therefore, no payment could be made to her legally. The respondents (appellants) should have refused the payment even if the appellants (respondents) had desired that it should be made and that too through an authorised agent. Accordingly, the said payment cannot be taken to be a payment towards the discharge of liability of the appellant firm."

8. ' The submission of the petitioners that the payment was made on the authority of the letter executed by Samiullah, Managing Partner of the respondents dated 6-12-1974 (Exh. D.2) was rejected on the ground that it was not shown that the payment to Mrs. Azra Sheikh was made towards or in respect of liabilities of Shifa Medico (Manufacturing Division).

9. ' Mr. S.M. Saleem Shahnazi, learned counsel for the petitioners, however, has pointed out that this Court, in so holding, had over-looked the contents of Exh. D/16 which was a letter of request by Ch. Farooq Ahmad, an authorised agent of the respondents addressed to the petitioners for payment of the said amount of Rs,50,000 to Mrs. Azra Sheikh out of the liabilities of Shifa Medico (Manufacturing Division). This document established beyond doubt that the said amount was paid towards the liabilities of the respondents. Accordingly, in making this payment to Mrs. Azra Sheikh, the petitioners were justified in claiming that the said amount was paid towards the discharge of the liabilities of Shifa Medico.

10. ' Exhibit `D/16' is in the following terms: "Mr. Muhammad Younus Malik, Managing Partner, Shifa Laboratories (Ex. Shifa Medico)

11. Manufacturing Division, 7-Link McLeod Road, Lahore.

12. ' Dear Sir, ' Please pay Rs,50,000 (Rupees Fifty thousand only) to Azra Shaikh, widow of Major Javed Barkat Choudhry of McLeod Road, Lahore, out of the liabilities of Shifa Medicos (Manufacturing Division) taken by you.

13. ' Thanking you. Yours faithfully, (Sd.)

14. Ch. Farooq Ahmad s/o Ch. Ghulam Muhammad, 69, Nisbet Road, Lahore."

15. ' This letter does indeed make it clear that the payment of this amount was for discharge of the liabilities to Shifa Medicos (Manufacturing Division). As this mistake is patent on the face of the record we would review our impugned judgment disallowing this claim.

16. ' Coming to the claim of the petitioners with regard to the payment of Rs,2,00,000 to Azam Qureshi it is submitted that the finding given by this Court, in its impugned judgment, is based on some erroneous assumptions of fact. The learned counsel has submitted that the plea of the petitioners was that in case the said amount of Rs,2,00,000 had been deposited in the Bank account of the respondents it would have been adjusted against the loan granted to them by the Bank and neither the respondents nor the family of its managing partner namely Ch. Samiullah could receive any amount from the said account. In this connection, he points out that the respondents-firm was in debt to its Bankers and it was for this very reason that even the initial down payment of Rs,2,00,000 to the respondents was also made in cash. Moreover, the fact that the signatures on the voucher Exh. D/15 were the signatures of Azam Qureshi was fully proved by D.W. 10 Mr. Abdul Hafeez, Manager, Allied Bank. Furthermore, that the statements of Basharat Chattha, Shahid Latif, and Faiz Muhammad Sadiq, D.Ws. To the effect that Rs,2,00,000 had been paid in cash to Azam Qureshi have also been overlooked.

17. The above assertions appear to be correct and this Court in agreeing with the High Court to disallow the claim for Rs,2,00,000 has done so by overlooking the some important piece of evidence which were present on the record. The finding in this respect too, therefore, requires review.

18. ' Accordingly we would review our judgment dated 12-1-1991 to the extent that the amount of Rs,50,000 paid by the petitioners to Mrs. Azra Shaikh and the amount of Rs,2,00,000 paid by them to Azam Qureshi are upheld with the result that the decree passed by the High Court in favour of the respondents to the extent of Rs,9,97,672.30 is reduced to Rs,7,47,672.30.

19. ' In the result, the review petition succeeds in part and is allowed in the above terms. No costs.

20. Review partly allowed.