1. GULZAR AHMED, J.---This is a banking suit in which plaintiff Industrial Development Bank of Pakistan has claimed an amount of Rs.49,022,791.61 against the defendants. The defendants were served with the summons. Defendants Nos.1, 2, 3, 4, 6, 8 and 9 jointly filed an application for leave to defend the suit on 17-8-2000 being C.M.A. No.7469 of 2000. Defendant No.7 was declared ex parte vide order dated 17-10-2000. The Equity Participation Fund made an application for being impleaded as defendant No.10 in the suit being pari passu charge holder of the property mortgaged with the plaintiff. This application was allowed vide order dated 1-6-2004 and the Equity Participation 'Fund was impleaded in the suit as defendant No.10 and an amended title of the plaint to this effect was filed. On the promulgation of the Financial Institutions (Recovery of Finances) Ordinance, 2001 (the Ordinance), the defendants Nos.1, 2, 3, 4, 6, 8 and 9 filed amended application being C.M.A. No.1453 of 2003 for leave to defend the suit to which the plaintiff filed replication. The defendant No.7 also filed an application for leave to defend the suit under the Ordinance being C.M.A. No.1474 of 2003.
2. The defendants Nos.6, 8 and 9 filed an application seeking amendment in their application for leave to defend the suit being C.M.A. No.2424 of 2004. This application was allowed vide order dated 17-2-2005, consequently the defendants Nos.6, 8 and 9 filed an amended application for leave to defend the suit being C.M.A. No.1896 of 2005. One Qamaruzaman Khan made an application being C.M.A. No.2548 of 2004 for impleading him as defendant in the suit being successor of defendant No.5, which was allowed vide order dated 17-2-2005. Amended title was filed in which the said Qamaruzaman Khan was impleaded as defendant No.11. He filed an application for leave to defend the suit being C.M.A. No.1833 of 2005. The plaintiff has filed replication in reply to both C.M.A. Nos.1883 of 2005 and 1896 of 2005. The defendant No.7 had filed an application for recalling of the ex parte order against him (C.M.A. No.8094 of 2005) which was allowed vide order dated 24-4-2006.
3. I may point out that the office has not listed for hearing C.M.A. No.1454 of 2003 which is an application for leave to defend the suit of the defendant No.7 although it ought to have been listed after recalling of the ex parte order against him. Be that as it may, the counsel for the defendant No.7 so also the plaintiffs counsel have argued and made their submissions on this application and I propose to deal with it also along with listed applications. Before adverting to the applications, it will be useful to mention brief facts as alleged in the plaint. The plaintiff has alleged that the defendant No.1 which is a private limited company has requested for and was granted following financial facilities: -
(1) 10-9-1986 Rs.1.5 million
(LFM) buy back price Rs. 1,713,110.00.
(2) 20-9-1987 Rs.2.85 million
(LMM) buy back price of Rs.3,291,036.00.
(3) 3-5-1989 Rs.0.6 million
(LMM) buy back price of Rs. 1,140,800.00.
(4) 2-8-1991 Rs.11.00 million (Running Finance) buy back price Rs. 14,036,000.00.
(5) 22-11-1997 Rs.13.5 million
(LMM) buy back price of Rs.23,661,000.00.
4. It is alleged that at the request of defendant No.1, the initial four facilities were rescheduled by the plaintiff vide its letter dated 19-8-1997. In respect of the abovementioned five finance facilities, defendant No.1 signed and executed and delivered to the plaintiff Finance Agreements and Agreements of Hypothecation which were registered with the Registrar Joint Stock of Companies.
5. With regard to finance facility No.2, the defendant No.1 executed and delivered to the plaintiff a Letter of Continuity of mortgaging all the existing and future fixed assets comprising of Plot No.35/1, 2, 7 and 8 measuring 4 acres situated at Tando Jan Muhammad, all buildings constructed thereon, all plant, machinery and equipment installed thereon. Such Letter of Continuity was also registered with the Registrar Joint Stock Companies. Similar Letter of Continuity was also signed in respect of 3rd, 4th and 5th finance facilities. With regard to the 4th finance facility, the defendant No.1 also signed an agreement of floating charge and also Memorandum of Deposit of Title Deeds of its own property in Tando Jan Muhammad which was also continued for the 5th facility. A demand promissory note was also signed for the 5th facility. The defendants Nos.2 to 4 gave personal guarantees in respect of all the five facilities. As a further security, it is alleged that on 18-1-1987 defendant No.1 deposited with the plaintiff title deeds of property being plot of Land No.CL-119 measuring 3 Acres together with building known as 1-Jail Road, Rawalpindi and Memorandum of Deposit of Title Deeds signed by defendants Nos.2, 4 to 9 was also delivered to the plaintiff. This property is alleged to have been further mortgaged in respect of 2nd, 4th and 5th finance facility.
6. As the defendant failed to pay the dues, the plaintiff sent a legal notice dated 12-4-2000 for repayment of its dues and thereafter filed this suit praying for passing of a final mortgage decree against defendants Nos.1, 2, 4 to 9 in the sum of Rs.49,022,791.61 and personal decree against defendants Nos.1 to 9 for the same amount and further markup and cost of the suit. The defendants as noted above have filed the applications for leave to defend the suit. C.M.A. No.1453 of 2005.
7. Mr. Rizwan Ahmed Siddiqui, learned counsel for the defendants Nos.1 to 4 has admitted the fact of granting of the abovementioned five finance facilities by the plaintiff to the defendants including rescheduling of the initial four facilities and has admitted the singing of Finance Agreements and the documents of security including mortgage by defendants Nos.1 to 9 but has contended that the defendants were disbursed only an amount of Rs.375,000 in respect of the 1st facility, Rs.710,000 in respect of the 2nd facility, Rs.858,000 in respect of the 3rd facility while no disbursement was made in respect of the 4th facility. He has contended that the plaintiff is entitled only to such of the amount, which it has disbursed to the defendants with agreed markup. Mr. Azizur Rahman, learned counsel for the plaintiff has stated that these defendants in their application for leave to defend the suit have not disputed the fact of disbursement of the five facilities except that an amount of Rs.6.115 million was not disbursed from 5th facility to the defendants and such fact is admitted by the plaintiff because the defendants have not brought the contracted machineries on the site of the defendant No.
1. He has stated that the suit has been filed only in respect of the amount disbursed by the plaintiff to the defendants. I have considered the submissions of the learned IA counsel and find that there is no plea in this application that the plaintiff has disbursed only the amount as is orally argued by the learned counsel for these defendants. In this application, no where, these defendants have alleged that they wen not disbursed full amount of the initial four facilities. The fact that the amount of Rs.6.115 million was not disbursed to these defendants by the plaintiff from the 5th facility is an admitted fact and it is also the case of the plaintiff that such amount is not included in the claim of the plaintiff. In view of the above stated position of the record there is no room for these defendants to argue that they were not disbursed full amount of the four facilities. At the same time, these defendants have not been able to show from the record that the plaintiff has included in the claim made in the suit the amount of Rs.6.115 million which is admitted to have not been disbursed to the defendants from the 5th facility. Apparently no question whatsoever either of fact or law is raised by these defendant s for the grant of this application. All the material facts in relation to the granting of five facilities execution of finance documents and security documents stand admitted and in view of the above ,circumstances available on the record, I find no merit in this application which is accordingly dismissed. C.M.A.
8. No.1896 of 2005: This is an application for leave to defend the suit:filed by defendants Nos.6, 8 and
9. The plaintiff has filed replication/counter affidavit to this application. Mr..Nadeem Akhtar learned counsel appearing for these defendants has submitted that these defendants are not shareholders/directors of the defendant No.1 nor they have requested for grant of finance facility or they were the beneficiary of the facility. He has stated that the signatures of these defendants on the Memorandum of Deposit of Title Deeds and Letters of Continuity of Rawalpindi property are forged and that the plaintiff has charged mark-up over mark-up to which these defendants are not liable. In support of his submission he has relied upon the case of Allied Bank of Pakistan Lim led v. Mrs. Fahmida (2004 CLD 110), Imtiaz Ahmed v. Platinum Commercial Bank Limited (2004 CLD 481), Messrs Habib Bank Limited v. Messrs Pan Islamic Steamship Company Limited (2005 CLD 626), Mushtaq Ahmed Bohra v. Crescent Investment Bank Ltd. (2005 CLD 444) and Karnran Zali v. Union Bank Limited (2002 CLD 876).
9. On other hand Mr. Azizur Rahman learned counsel for the plaintiff has submitted that these defendants have already admitted in their earlier application for leave to defend the suit their signatures on the Memorandum of Deposit of Title Deeds and Letters of Continuity of Rawalpindi property and they cannot now resile from it; and that no particulars in respect of forgery are pleaded in terms of Order VI, rule 4, C.P.C. He further submitted that an admission made by a party in a legal proceeding could not be treated as an innocent admission and that it is binding on it. In support, he has relied upon the case of Muhammad Yaqoob v. Feroze Khan and others (2003 SCMR 41), Mst. Baswa r Sultan v. Mst. Adeeba Alvi (2002 SCMR 326), Haji Suleman Ali Muhammad v. Ahmed Ali and another (PLD 1982 Karachi 111) and Ghulam Abbas v. Manzoor Ahmed and another (PLD 2004 Lahore 125).
10. In order to appreciate the submission of the learned counsel, the record shows that initially defendants Nos.1 to 4, 6, 8 and 9 have filed a joint application for leave to defend the suit being CMA No.7469 of 2000. This application was signed by defendant No.2 for himself and as a Managing Director of defendant No.1 and as an attorney of defendant No.3 and by defendant No.6 for himself and as attorney of defendants Nos.4, 8 and 9. In this application, these defendants have admitted the signing and delivering to the plaintiff the Memorandum of Deposit of Title Deeds and Letters of Continuity in respect of the mortgage of the Rawalpindi property in favour of the plaintiff.
11. On promulgation of the Financial Institutions (Recovery of Finances) Ordinance, 2001, these defendants filed an amended application for leave to defend the suit being C.M.A. No.1453 of 2003 in which too these defendants admitted the signing and delivery to the plaintiff the Memorandum of Deposit of Title Deeds and Letters of Continuity of Mortgage of Rawalpindi property. Subsequently the defendants Nos.6, 8 and 9 filed an application under order VI, rule 17 (C.M.A. No.2424 of 2004) for amendment of their leave to defend application being C.M.A.
12. No.1454 of 2003 with prayer for raising additional pleas. By order dated 17-2-2005 the application for amendment was allowed and the application in hand was filed. Now these defendants have not amended any part of their earlier application for leave to defend the suit i.e. C.M.A. No.1453 of 2003 but by, the amended application have raised only additional pleas in which one of the plea is that the Memorandum of Deposit of Title Deeds and Letters of Continuity in respect of mortgage of Rawalpindi property bears their forged and fabricated signatures. Thus there are two pleas of these defendants on the record, earlier one of admission of their signatures on Memorandum of Deposit of Title Deeds and Letters of Continuity and the latter one of denial of such admission. Both these pleas are mutually destructive inasmuch as if one is believed to be true the other one will obviously be false. Both these being so diagonally opposed to each other that they cannot co-exist at one and the same time. Such pleading is not permissible in law and even through amendment ir the pleading, it will not be permissible. Once an admission is made by the. Party to the proceeding in its pleading, it will not be allowed to wriggle out of the same as the other party acquires valuable right in terms of Order VIII, rule 5, C.P.C. And Article 113 of the Qanun-e-Shahadat, 1984. Reference in this respect is made to the case of Secretary Government (West Pakistan) N.-W.F.P. Department of Agriculture and Forest v. Kazi Abdul Kafil (PLJ 1978 SC 314), Mst. Baswa r Sultan v. Mst. Adeeba Alvi (2002 SCMR 326), Messrs Haji Suleman Gowawala & Sons Ltd. v. Usman and ,13 others (1985 CLC 132), Qaid Jauhar v. Mst. Hajiani Hajra Bai (2002 CLC 551) and Suleman All Muhammad v. Ahmed All (PLD 1982 Karachi 111).
13. In view of the above discussion, the pleas of these defendants that the Memorandum of Deposit of Title Deeds and Letters of Continuity of mortgage of Rawalpindi property bears forged signatures of these defendants cannot be accepted and the admission made by them in C.M.A. No.1453 of 2003 will be binding on them. As regards the other submissions of the learned counsel that these defendants were neither shareholders or directors or requested for facility or were beneficiary of the loan granted to the plaintiff No.1, suffice to note that the person who becomes surety for principal borrower does not have to be either the shareholder or director or request for facility or be beneficiary of it. The question whether there has been charge of illegal markup will be dealt with by me later on while summing up the matter. In any case the question of charge of illegal mark-up is not substantial question of law and fact on the basis of which alone the leave to defend application will be granted. This application is therefore, dismissed. C.M.A. No.1454 of 2003: This is an application for leave to defend the suit filed by defendant No.7. The plaintiff has filed counter affidavit. Mr. M. Zia Kiyani learned counsel for defendant No.7 has contended that signature of this defendant on the documents Annexures-G, L, P,. Z-4, Z-16 and Z-19 are forged and that he is an American citizen and, arrived in Pakistan on 18-9-1987 and left on 25-9-1987 and that his NIC number on Annexure Z-16 is not correct and that summons were not served on this defendant. In support of his submissions he has relied upon the case of Imtiaz Ahmed v.
14. Platinum Bank Ltd. (2004 CLD 481), Messrs Habib Bank Limited v. Messrs Pan Islamic Steamship Company Ltd. (2005 CLD 626), Kamran Zali v Messrs 3hitai Rubber Industries Ltd. (2001 CLC 492), Khuda Buksh v. Banking Court No.11, Multan (2000 CLC 1013), Messrs Allied Bank of Pakistan Ltd. v.
15. Messrs Tahir Traders (PLD 1986 Karachi 369), Messrs Quetta Silk Centre v. Muslim Commercial Bank (2003 CLD 254) and Emirates Bank International Ltd. v. Messrs United Export Limited (PLJ 1994 Karachi 222).
16. On the other hand Mr. Aziz-ur-Rehman learned counsel for plaintiff has submitted that this application is hopelessly time-barred and that service has been effected on this defendant available address and that mere production of some pages of the passport will not establish that the documents were not duly delivered to the plaintiff carrying signature of defendant No.7 and that no ground for granting of leave to defend the application is made out. I have considered the submission of the learned counsel. The defendant No.7 has stated that at the time when the Memorandum of Deposit of Title Deeds of mortgage of Rawalpindi property dated 18-1-1987 is stated to have been signed by him, he was out of Pakistan and therefore his signature on this document is forged. To support this assertion, the defendant No.7 has attached with his application photocopy of his Pakistani passport, which comprises of initial two pages containing his name, address and other particulars and pages 12, 13, 20 and 21. Page 13 contains illegible rubber stamp with hand written date of 18-9-1987 and a stamp of U.S. Emigration, New York dated 25-9-1987. This in itself does not show that on 18-1-1987 the defendant was not in Pakistan. Besides this defendant claims himself to be American citizen. He has not filed copy of his American passport. Therefore, merely on the basis of the passport of which selected pages have been filed by this defendant will not furnish sufficient justification that he has not signed these documents or they bear his forged signature more particularly when it is not established that this defendant was not in. Pakistan on 18-1-1987 and on the dates when letters of continuity are said to have been signed by him. The further plea that he was not served with the summons 'is also not available to him because his passport contains the address of Gatemell's Hotel 19 Civil Line, Rawalpindi on which the .Service has been effected. This defendant has not stated anywhere that he has given any other address to the plaintiff. Consequently this application has no merit and the same is dismissed.
17. C.M.A. No.1833 of 2005: This is an application for leave to defend the suit filed by defendant No.11 to which replication has been filed by the plaintiff. Defendant No.11 was not a party in the suit but was impleaded on his application on the basis that he is a legal heir of defendant No.5 being her husband. Mr. Qazi Faez Isa learned counsel for defendant No.1] has contended that the defendant No.5 had died on 6-6-1975 and therefore the signature of her on Memorandum of Deposit of Title Deed dated 18-1-1987 are forged. He has further contended that in similar way the further Memorandum of Deposit of Title Deed 9-9-1991 and Letters of Continuity dated 22-10-1987 and 3-4- 1998 also bears her forged signatures. He has contended that there is dispute between defendant No.11 and his sons regarding Rawalpindi property in respect of which civil cases and criminal case are pending. He has placed much emphasis on the N.I.C. Numbers mentioned in Letter of Continuity dated 3-4-1998 said to be showing year of her birth later to that of some of her sons. He has contended that no legal notice was given to the defendant No.5 and that these are substantial questions of law and fact and unconditional leave to defend the suit be granted. In reply learned counsel for the plaintiff has contended that the defendants have taken inconsistent position in respect of date of death of defendant No.5 and that it is not known whether in actual fact she has died or not. He has contended that the documents of Memorandum of Deposit of Title Deed so also the Letters of Continuity were duly delivered to the plaintiff and that there is nothing to show that there is any dispute between defendant No.11 and the other defendants. The peculiar aspect of this matter is that defendants Nos.1, 2, 3, 4, 6, 8 and 9 in their applications for leave to defend the suit C.M.A. No.7496 of 2000 so also in their application for leave to defend the suit under Ordinance of 2001 being C.M.A. No.1453 of 2003 have categorically stated that the defendant No.5 has died in November, 1998. These two applications were respectively filed on 17-8-2000 and 30-11-2001. For the first time the defendant No.7 in his application for leave to defend the suit C.M.A. No.1454 of 2003 filed on 17-12-2002 introduced the date of death of defendant No.5 to be that of 6-6-1975 and has attached with his application photocopy of her death certificate. Subsequently, the defendants Nos.6, 8 and 9 in their amended application for leave to defend under the heading of additional pleas in para.B have stated that the defendant No.5 died in the year 1975. No death certificate was attached with it. The defendant No.11 also in his application for becoming party in the suit has given the date of death of defendant No.5 as 6-6-1975 and has attached a photocopy of her death certificate. He has however not filed copy of death certificate with his application under consideration. There are therefore, three dates of death of defendant No.5 appearing on the record. Admittedly the defendants Nos.2, 4, 6 and 7 are the sons of the defendant No.5 while defendants Nos.8 and 9 are her daughters. The defendants Nos.2, 4, 6, 8 and 9 have given the date of death of defendant No.5, their mother to be of November 1998.
18. Subsequently in their additional pleas the defendants Nos.6, 8 and 9 have altered their position and given the date of death of their mother to be in the year 1975 while defendant No.7 and defendant No.11 claim that the defendant No.5 has died on 6-6-1975. The photocopies of death certificate filed by the defendants Nos.7 and 11 have variation inasmuch as in the photocopy of the death certificate filed by defendant No.7 under the column class is blank, while under the column class of death nil is written whereas in the photocopy of death certificate filed by defendant No.11, under column class Muhammedan is mentioned while under the column class of death heart failure is written. These variations in the death certificate does not make the certificate a reliable document.
19. The majority of sons and daughters of defendant No.5 have given the date of her death to be of November 1998 and there is nothing to disbelieve this fact and subsequent change in date of death of defendant No.5 is nothing but an afterthought. The question about the number of NIC is not of much importance as there may be mistake in the same more particularly when the signatures on the documents itself was not in much dispute by defendants Nos.1, 2, 4, 6, 8 and 9. I therefore do not find much force in the argument of the learned counsel for the defendant No.11. No ground for granting of the application for leave to defend the suit is made out consequently this application is dismissed. Now coming to the point as to what sum is due to the plaintiff. In the supplementary Agreement dated 12-3-1998 annexure Z-8 with the plaint a sum of Rs.19,412,000 in respect of first four finance facilities is admitted by the defendants to be due. By this agreement, the time for payment of these dues have been extended and it is provided that mark-up and all other payments due to the plaintiff under the finance agreements will be paid in accordance with the plaintiff letters dated 19-8-1997, 6-1-1998 and 28-2-1998. In the letter dated 19-8-1997 the long term loans of Rs.5.376 million is made payable in 10 equal half yearly instalments commencing from December 1998 along with mark-up @ 18% per annum and fine Rs.0.60/Rs.1000/day for the period of default. The short term liability has been fixed at Rs.14.036 million with mark-up @ 18% per annum w.e.f. 1-10-1998. The rate of mark-up on both long and short terms loans was reduced to 14% per annum by letter dated 6-2-1998 while by letter dated 28-2-1998 the repayment of restructed liability was to commence after six months from the last disbursement of the additional financial assistance under SBP Loan Scheme for BMR. With regard to the 5th finance facility, admittedly a sum of Rs.6.115 million was not disbursed from it to the defendant. The only sum disbursed to the defendants for this facility was Rs.7,385,000. There is lump sum charge of mark-up on the whole amount of 5th facility. In the first place, it appears that the agreement of sale and purchase as visualized in the Finance Agreement dated 3-9-1998 is not completed until the whole finance is disbursed to accomplish the sale of goods and where sale of goods is not accomplished, little reason is needed to say that the mark-up price will not become due. In the case in hand, the plaintiff has explained in its replication that the whole amount of 5th facility was not disbursed as the contracted machineries were not brought on site by the defendant No.l. Thus the defendant No.1 has been blamed for non-disbursement of whole amount of 5th facility to which there appears to be no denial. Annexure Z-25 to the plaint seems to be the statement of account of 5th facility. It shows disbursement of Rs.7,385,000 and mark-up of Rs.306,982. These entries in the statement of account are not disputed. Thus in respect of the first four facilities a sum of Rs.19,412,000 with 14% mark-up from the date of supplemental agreement dated 12-3-1998 up to the date of the suit will come to Rs.6,001,542 and total Rs.25,413,542. In respect of 5th facility a sum of Rs.7,385,000 and mark-up of Rs.306,982 will make total of Rs.7,691,982. The total amount of all the five facilities with mark-up comes to Rs.33,105,524 which is due to the plaintiff. The suit is therefore decrecd in the sum of Rs.33,105,524 with cost of fund from the date of the suit and cost of the suit against defendants Nos.1 to 1 jointly and severally with decree for sale of mortgaged properties of defendant No.1.
20. The Rawalpindi property was mortgaged for finance facility Nos.1, 2, 4 and 5 thus the mortgagors defendants Nos.2, 4 to 9 are liable only to the extent of these four facilities which comes to Rs.25,860,869 and the suit against them is decreed in this sum with decree for sale of their mortgaged property.