' MANSOOR AHMAD, J.---Being aggrieved from the judgment and decree dated 19-6-1996 passed by the Chairman, Banking Tribunal, Rawalpindi, the appellant preferred the present appeal.
2. The appellant is a financial institution and it had extended financial facilities to respondent No,2 through respondent No,
1. This facility was for a period of 12 months with mark-up thereon payable on six months basis. The amount was re-payable within 12 months together with mark-up of Rs,5.60 million for 12 months.
3. Respondent No,1, a scheduled bank, issued a Bank Guarantee No,90/002 dated 18-3-1990.
Through this guarantee re-payment of Rs,40,000 million alongwith mark-up of Rs,5.60 million was ensured to the plaintiff.
4. The financial facility was extended to respondent No,2.But it was not repaid. The appellant invoked the bank guarantee and filed the claim of Rs,45,600,00 million with respondent No, 1 .
Neither respondent No,2, made any repayment nor respondent No, 1 released any payment in terms of the bank guarantee, the appellant therefore, filed a suit for the recovery of sum due.
5. Vide judgment and decree which is subject-mater of this appeal, the Tribunal held that the appellant failed to lodge its claim within stipulated date and in a mode as provided by the guarantee. Further it was held that respondent No,1 was not liable to make any payment under the bank guarantee. However, this suit to the extent of Rs, 45,600,00 million was decreed against respondent No,2.
6. Later the decree against respondent No,2 was also recalled by an order of review. Against that the appellant has also filed an appeal. We have already allowed that appeal and the decree against respondent No,2 as was originally passed was resurrected.
7. The present appeal is confined to the extent of determination of the liability of respondent No,1 in the light of the guarantee dated 18-3-1990. The contents of the guarantee are reproduced in extenso in the judgment of the Tribunal.
8. Supporting the judgment of the Tribunal, learned counsel for respondent No,1 argued that in the penultimate paragraph of guarantee deed time for filing the claim was specifically mentioned as 10-3-1991 failing which the bank was discharged of all its liabilities under this guarantee. Arguing further he submitted that the claim was lodged by the appellant on 18-3-1991. Thus it was in violation of the specific terms of the guarantee and by that date when the claim was filed by the appellant the liability of the bank stood discharged.
9. On the other hand it was argued on behalf of the appellant that the bank guarantee is a document which was required to be read as a whole, differentiation between the general statements and particular statements contained therein are to be construed to save rather than destroy or nullify the document. The case-law Allah Bakhsh etc. v. Muhammad Ishaque etc. (PLD 1984 SC 47), House Building Finance Corporaion v. Shahinshah Humayun Cooperative House Building Society etc. (1992 SCM R 19) Ghazanfar Hussain v. Rehmat Bibi etc. (1989 CLC 310), Mst. Iqbal Begum v. Abdul Ghaffar etc. (1995 CLC 105), Radha Sundar Dutta v. Muhammad Jahadur Rahim and others (AIR 1939 SC 24) and case of Forbes v. Gil and others (AIR 1921 Privy Council 209) were cited on behalf of the appellant.
10. We have considered the arguments of the learned counsel for the parties and perused the record. The analysis of bank guarantee shows that it was provided by the respondent-Bank ensuring the re-payment of Rs,45,600,00 million. The validity period of bank guarantee was mentioned as up to 18-3-1991. The guarantee was executed on 18-3-1990. In para. 2 it was provided that\ the liability of the bank shall be that of principal debtor and it shall not be in ,any way abrogated or affected by Saudi-Pak Industrial and Agricultural Investment Company, taking or releasing any other security, from the customer, in respect of the 'finance provided. Further the guarantee was irrevocable and unconditional and the bank was bound to fulfil its obligation under the guarantee without question or reference to the customer. We find that the validity period of the guarantee was 18-3-1991. The period for repayment of the finances provided to respondent No,2 was 12 months and its repayment alongwith mark-up was guaranteed by the bank. From the nature of the transaction and the contents of the guarantee it was not difficult for us to conclude that the validity period of guarantee was agreed to between the parties was one year and therefore, it was rightly mentioned. As period expiring on 18-3-1991. The view taken by the Tribunal that the claim was required to, be filed by 10-3-1991 and thereafter no claim was entertainable was based on an erroneous assumption that the validity period of guarantee was up to 10-3-1991. There could not be any contradiction between the validity period and the period for filing of the claim.
Even if any date -prior to the validity period is mentioned in the guarantee that would not discharge the liability of the bank under the guarantee before expiry of the period of validity. Filing of the claim was merely a mode of convenience. It could not construe as abridging the period of validity from the nature of transaction and the other clauses contained in the bank guarantee. It is clearly discernible that the guarantee was for a period of 12 months and the liability of the bank could not be discharged before 18-3-1991. Admittedly claim was lodged by the appellant with the bank on 18-3-1991. Therefore, the claim which was filed within a period of validity was proper and tenable.
11. The other plea advanced by the respondent is that even if the validity period up to 18-3-1991 is taken to be a valid period for lodging claim, no claim by an authorised person was allowed. Thus according to the learned counsel there was no claim with the bank and the Tribunal correctly decided the suit. In support of his argument learned counsel draw our attention to clause 3 of the bank guarantee which envisaged that a letter signed by General Manager/Chief Executive or Authorised Officer of SPICO stating that the customer has not paid the finance within a aforesaid period of 12 months shall be conclusive evidence that the customer has not paid the amount due.
We are afraid that the argument of the learned counsel has no force for the reason that the reference to the General Manager/Chief Executive or Authorised Officer is referable to a certificate issued by them as a conclusive proof that the payment has not been repaid. This para. Could not be interpreted to show that the claim of the appellant could only be filed by the General Manager/Chief Executive. The claim was filed by the bank through the Chief Finance Division/Secretary of the company. The claim was lodged by Chief of Finance Division on behalf of the company and the company owns it. The learned counsel for the respondent has pointed out that subsequently the Chief of Finance Division was authorised through a resolution of the company and that further proves his contention that on the day of filing of the claim the officer concerned was not authorised. We do not find any force in the submission of the respondent. The claim filed on behalf of the company was filed by Chief Finance Division/Secretary of the company and there is nothing on record to show that he was unauthorized to file such claim on behalf of the company. We are not inclined to entertain the technical objections raised by the respondent to avoid the commitment made by them as a responsible financial institution. Respondent No,1 as one of the responsible bank is working in the financial sector of this country, the undertaking and the commitment made by the respondent is required to be honoured within the just parameter of undertaking. Approach and attitude to avoid the liability and obligation by making a fetish of the technicality is not reflective of a healthy approach. As we find that the appellant has filed the claim within the validity period of bank guarantee, therefore, respondent No,1 was legally D bound to honour its commitment and obligation arising under the guarantee and was liable to make the payment.
' For the foregoing reasons we do not approve the judgment and decree of the Banking Tribunal and we hold that the respondent was also jointly and severally liable with respondent No,2 to the extent of an amount of Rs,45,600,00 million. Accordingly we modify the decree to the extent we have mentioned. The appeal is accordingly allowed.