MIAN HAMID FAROOQ, J.---Appellant, through the filing of the present first appeal, has called in question judgment and decree dated 21-1-2005, whereby the learned Banking Court, rejected the plaint in appellant's suit for declaration and permanent injunction.
2. Seemingly aggrieved by issuance of demand notices from the respondent-Bank, calling upon the appellant to make payment of certain amounts, stately, outstanding against respondent No.3, principal debtor, and the appellant in the capacity of guarantor, the appellant filed the suit for declaration and permanent injunction, against the respondents. Respondents Nos.1 and 2 filed application seeking leave to defend the suit asserting therein that the plaintiff stood guarantor on behalf of respondent No.3, who owes an amount of approximately Rs.5,47,701 to respondent No. 1.
The learned Banking Court framed solitary issue, viz. "whether the suit is maintainable", and proceeded to reject the plaint vide judgment and decree dated 2-10-2003. The said decision was challenged by the appellant through filing the appeal (R.F.A. No.437 of 2003) and this Court, on 30- 9-2004, allowed the appeal and directed the learned Banking Court to decide the suit, afresh, after framing necessary issues. In post remand proceedings following issues were framed:--
(1) Whether the suit is not maintainable in the present form? OPD
(2) Whether the plaintiff has not come to the Court with clean hands? OPD
(3) Whether the plaintiff has got cause of action to sue? OPP
(4) Relief.
The learned Banking Court recorded the evidence of the parties and ultimately rejected the plaint vide impugned judgment and decree dated 12-1-2005, hence the present appeal.
3. Learned counsel for the appellant has contended that as the matter/dispute was compromised between the principal debtor and the respondent-Bank, therefore, the appellant, as guarantor, stood discharged in view of section 135 of the Contract Act and, thus, cannot be held liable to pay any amount. He has relied upon Federation of Pakistan v. National Bank of Pakistan, Karachi and another 1981 CLC 847. Conversely, the learned counsel for the respondent-Bank has submitted that the appellant previously filed the Constitutional petition (Writ Petition No.16395 of 2001) wherein, he, as guarantor, admitted his liability. He, while referring to the guarantee (Exh.P.2) and agreement (Exh.P.1), has submitted that as the appellant executed the continuing guarantee, therefore, he is liable to pay the outstanding amount till the final adjustment by the principal debtor. He has added that the definition of "customer" as given in Ordinance, 2001, includes the guarantor.
4. In view of the arguments of the learned counsel for the parties, we have examined the summoned record, perused the impugned judgment and find that the learned Banking Court, pursuant to the directions of this Court, framed necessary issues, recorded the evidence of the parties, adverted to every aspect of the case, appreciated the evidence on record and reached to the proper conclusions, which are not open to exceptions. We have perused the evidence produced by the parties in juxtaposition with the findings rendered by the learned Banking Court and are of the view that the findings of the learned Banking Court are not only in accordance with the record of the case, but the same are also in consonance with the law on the subject. Learned counsel could not point out any misreading or non-reading of the evidence on record on the part of the learned Banking Court. We do not see any sufficient grounds to unsettle the finding of the learned Banking Court, which are hereby maintained.
5. Admittedly, the appellant filed the Constitutional petition (Writ Petition No.16395 of 2001), before this Court. The findings of this Court, which have been reproduced by the learned Banking Court in the impugned order, sufficiently show that this Court has already concluded that the case of the appellant does not fall within the purview of section 135 of the Contract Act. The appellant did not challenge the said order before higher forum, thus, the same attained finality. This Court has rendered findings on a particular issue, on a lis instituted by the appellant, which order has attained finality, therefore, the same issue cannot be reopened and re-agitated under the garb of present first appeal. #Even otherwise in the present set of circumstances the appellant is precluded from taking advantage and benefit of section 135 of the Contract Act. It has been rightly held by the learned Banking Court that in view of section 128 of the Contract Act, the liability of the borrower and the guarantor is co-extensive.#TS##
6. In the above perspective, we have examined the impugned judgment and find that the same is legal, apt to the facts and circumstances of the case and the learned Banking Court did not commit any legal error/defect justifying the interference by this Court. We are not persuaded to unsettle the well-reasoned judgment and decree of the learned Banking Court, which are hereby maintained.
Upshot of the above discussion is that the present appeal is devoid of merits, hence, the same stands dismissed, leaving the parties to bear their own costs.