' MUHAMMAD SAYEED AKHTAR, J.---The plaintiff/ respondent instituted a suit on 13th December, 1999 for recovery of Rs,71,504,827.00 against the defendants/ appellants. The appellants filed application under section 9 of the Banking Companies (Recovery of Loans, Advances, Credits and Finances)
Act, 1997 for leave to defend the suit. After the promulgation of Financial Institutions (Recovery of Finances) Ordinance, 2001, an application under section 10 of the said Ordinance was made for leave to defend the suit mainly on the ground that. The plaintiff earlier filed a suit C.O.S. No,135 of 1997 which was withdrawn unconditionally on 3-11-1997, the second suit on the same cause of action was not maintainable. The learned Single Judge, vide judgment dated 20-2-2003, dismissed the application for leave to defend and decreed the suit of the plaintiff to the tune of Rs,37,715,062 with costs along with cost of funds.
2. Learned counsel for the appellants contended that the earlier suit C.O.S. No,135 of 1997 was unconditionally withdrawn on 3-11-1997 by the respondent-Bank. The instant suit was not maintainable on the same cause of action. Learned counsel referred to section 27 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 to contend that no Court or authority could revise or review or call or permit to call in question any judgment/decree or order of Banking Court.
There was no request from the appellants 2 to 8 about the settlement of the dispute as such they stand discharged as guarantors. The earlier two applications of the respondent-Bank C.M. No,341-B of 1997 and C.M. No,361-B of 1998 were dismissed. The order dated 3-11-1997 about withdrawal of the suit was not assailed before the higher forum as such attained finality. There was a serious question of law and fact involved, unconditional leave to defend the suit should have been granted to the appellants.
' Conversely the learned counsel for the respondent submitted that the parties had reached an out of Court settlement on 22-10-1997 under which the appellants were to pay Rs,38,874,300 instead of 56.622 million. The appellants backed out of the same and the suit has been filed on the fresh cause of action. The defendants under the said settlement package removed all pledged merchandise and also took away the security documents.
3. We have gone through the judgment of the learned Single Judge, perused the record and considered the arguments of the learned counsel for the parties. C.M. No,341-B of 1997 in the earlier suit under Order XXXII, rule 3, C.P.C. States that the applicants after negotiations with the plaintiff- Bank have arrived at a compromise. The applicants (defendants 2 to 8) have no objection if a consent decree in the sum of Rs,38.8 million is passed against the defendants on the following terms:-- "(a) That 'a consent decree in the sum of Rs,38.8 million is passed against defendants Nos.1 to 8 as full and final settlement of the matter.
(b) Defendants Nos.1 to 8 will liquidate the decretal amount within 22 months from the date of the decree.
(c) That the plaintiff-Bank will immediately on the passing of the decree, release all the pledged goods and deliver the possession thereof to defendants Nos.1 to 8 so that they can commence production.
(d) That the defendants/applicants reserved their right to file a suit for damages against the plaintiff-Bank for financial loss and mental agony caused over the years, if so advised."
The noting on the said application shows that it was filed in the Court and not in the office on 3-11- 1997. Instead of passing a consent decree as prayed for, suit was "dismissed as A having been withdrawn" though there appears to be no such prayer. The application dated 3-11-1997 had been moved by all the defendants. It is thus clear that the offer was made by all the defendants/appellants and not by appellant No,1 only. At the request. Of the appellants, settlement package dated 22-10-1997 allowed a remission of almost Rs,18 million which they agreed to liquidate within the agreed period. The respondent was to release the goods worth Rs,18 million to appellant No,1 subject to a condition that it will mortgage another piece of land measuring 181 Kanals and 3 Marlas with the respondent situated in Haripur Hazara. The respondent released the goods but the appellants did not perform their part of the contract and instead brought a contempt of Court petition against the respondent for not complying with the order dated 3-11- 1997. The instant suit has been brought on the breach of the settlement dated 22-10-1997 by the appellants. It gave a fresh cause of action to the plaintiff/respondent. We are satisfied in our mind that the settlement package was issued at the request of the appellants, from which they have backed out. The appellants got the pledged merchandise released and also took' away the security documents and have not paid even a single rupee towards the liquidation of their liability.
There is no manner of doubt that the withdrawal of the suit did not debar the plaintiff from bringing the instant suit as the breach of settlement package gave a fresh cause of action. This appeal has no merit and is dismissed leaving the parties to bear their own costs.