' UMAR ATA BANDIAL, J.---This R.F.A. Is filed against the judgment and decree dated 7-6-2001 passed by the learned Banking Court No,V, Lahore, for recovery of Rs,13.591 million in favour of the plaintiff-Bank (respondent herein) against the defendants (appellants herein) jointly and severally with costs till realization of the decretal amount. The appellant was granted unconditional leave to defend the respondents' suit for recovery by order dated 2-4-1999. The impugned order decreed the suit on the short ground of the failure of the appellants/ defendants to furnish Bank guarantee in the principal amount of Rs,9.004 million on or before 31-3-2001 as ordered by the learned Banking Court on 17-3-2001 in terms of section 13 of the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997. The ground for making an order for the appellant to furnish bank guarantee is expressed by the learned Banking Court in its order dated 17-3-2001: "Leave to defend the suit as granted on 2-4 1 )9 and proceedings are continuing beyond the period of 90 days mainly for the reason that the defendants had been filing miscellaneous applications. In these circumstances this Court deems it fit to order that defendants shall furnish bank guarantee to the tune of principal amount of Rs,9.004 million on or before 31-3-2001, in terms of section 13 of the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997."
2. We have perused the chart handed to us by the learned counsel for the respondent-Bank describing the progress in the suit onwards from 15-5-1999, the date of hearing following the leave granting order until 7-6-2001 when decree was passed. It is observed that several adjournments on the order sheet were granted at the request of the respondent-Bank or with its concurrence.
Therefore, delay in the disposal of the suit occurring after the leave granting order cannot be attributed wholly to the appellants. Be that as it may, the unconditional grant of leave to defend suggests a bona fide triable issue to have been disclosed by the defendant before the learned Banking Court. In those circumstances it was pre-emptory and onerous for the learned Banking Court to have applied a condition of bank guarantee of the entire principal amount without giving prior notice to the defendant or granting of hearing on the question to the parties. By connecting the liability for default in progress of the suit with the quantum of the liability the order dated 17-3- 2001 in fact operates as a review of the order granting unconditional leave to defend. Needless to say, no such relief was either prayed or otherwise urged in arguments by the respondent/ plaintiff.
3. In the circumstance, therefore, tht judgment and decree dated 7-6-2001 which is entirely based ipon the failure of the appellants/defendants to satisfy the subsequent condition of furnishing bank guarantee and not on the merits of the dispute on which leave to defend had been granted, is set aside. The appeal is allowed and the parties are directed to appear before the learned Banking Court No,1 on 15-10-2005 for hearing and disposal of the case within a period of six months. No order as to costs.