1. FAISAL ARAB, J.---For its financial r quirements, the defendant No.1 from time to time availed various financial facilities from the plaintiff. The present proceedings relate to following facilities:--
(1) Vide plaintiffs sanction advice dated 30-5-2000 as amended on 20-11-2000, the plaintiff sanctioned a facility for its Letters of Credit requirements to the extent of Rs.100,000,000. (2) Vide another sanction advice dated 27-6-2003 a Running Finance facility to the tune of Rs.22,300,000 and Inland Letter of Credit facility of Rs.10,580,000 was also sanctioned. (3) The plaintiff sanctioned yet another limit of Running Finance facility for Rs.35,000,000 and Letter of Credit facility for Rs.50,000,000 on 13-7-2004.
2. Thus, in aggregate, all the above mentioned facilities were to the tune of Rs.217,880,000. These facilities were markup based transactions and the aggregate buyback prices of these facilities were to the tune of Rs.270,207,846 i.e. The component of mark-up was Rs.52,327,846. The buyback price for each of the above sanctioned facility is mentioned in the agreements of finance dated 5- 9-2000, 28-6-2003 and 19-7-2004 filed as Annexures D-1, D-2 and D-3 to the plaint. Admittedly, the defendant No.1 did not repay the entire amount availed by it. The plaintiff has placed several demand notices dated 27-1-2003, 28-4-2003, 4-5-2005 and 24-5-2005 which are filed as Annexures N-1 to N-4 to the plaint. The demand notices were responded by defendant No.1 vide its letters dated 28-5-2003, 31-3-2005 and 15-4-2005 filed as An nexures 0-1 to 0-3.
3. In spite of defendants' assurances, when the obligations were not liquidated, the plaintiff served legal notice dated 7-7-2005, requiring the defendants to make payment of Rs.157,176,955 which according to the plaintiff were due and payable on 30-6-2005. The plaintiff then filed the present suit claiming a sum of Rs.161,210,174.98 as due and payable on 30-9-2005 as per statement of account filed as Annexure R to the plaint. It is also an admitted position that defendant No.1 availed the finances through four separate accounts that it operated with the plaintiff. With the plaint the plaintiff did not file statements of accounts of all the four accounts showing each transaction separately. Only a statement showing aggregate figures was filed with the plaint. The defendant No.1 in paragraph 5 of its leave to defend application has acknowledged that it in all availed facilities to the extent of Rs.372,865,315 and repaid a sum of Rs.311,769,-154.
4. At one of the hearings i.e. On 18-4-2006 the defendant No.'ls counsel admitted that a sum of Rs.150 million is due and payable but this admission of liability was inclusive of the liability of its other concern i.e. Marvi Agrochem (Pvt.) Limited which is subject-matter of suit No.B-31 of 2005. On 18-4- 2006, this Court also directed the parties to file statements of accounts. In compliance of this Court's directions dated 18-4-2006, the plaintiff on 23-5-2006 filed statements of each of the four accounts separately. P/I to P/4 are statements of accounts reflecting actual amount disbursed and repayments made against such account. P/5 to P/8 are statements reflect plaintiffs claim for mark-up against each of four accounts. The defendant No.1 has not disputed any entry which show disbursement of the amount and has also not claimed that any amount which it repaid is not reflected in the A statements of account filed as P/1 to P/4. The defendant No.1 has however, disputed all entries with regard to mark-up appearing in the statements of accounts filed as P/1 to P/8.
5. In the circumstances the outstanding balances of each of the four accounts without the incidence of mark-up is to be first determined. This can be arrived at by first deducting repayments from the disbursed amounts and then deducting all entries of mark-up. Thereafter mark-up permissible under the law could be added to the aggregate of outstanding balances of the four accounts in order to arrive at the final liability of defendant No. 1 .
6. I shall first proceed to determine outstanding balances of each of the four accounts, ignoring entries with regard to mark-up. The outstanding balance in Account No.58030031401 filed by the plaintiff as P/1 is Rs.54,644,986.00. At page 2 of the statement filed as P11 a debit entry of Rs.5,343,000.00 is shown towards mark-up. When this amount is deducted from the outstanding amount, the balance is reduced to Rs.49,301,986.00 in Account No.58030031401.
7. The outstanding balance in Account No.011030031402 filed by the plaintiff at Annexure P/2 is Rs.10,425,994.10. At pages 15,17,18 of the statement filed as P/2 three debit entries for Rs.2,000,000.00, Rs.1,389,479.10 and Rs.1,490,655.28, collectively they are to the tune of Rs.4,&80,134.38. When Rs.4,880,134.38 of these three entries are deducted from the outstanding amount, the outstanding balance is reduced to Rs.5,545,859.72 in Account No.011030031402.
8. The outstanding balance in Account No.011030031401 filed as Annexure P/3 is Rs.34,948,880.36. At pages 20 and 23 of the statement filed as P/3 two debit entries of Rs.446,887.15 and 362,738.92 are shown as mark-up amount. At page 21 of the Annexure P/3 there is another debit entry dated 20- 12-2004 for Rs.1,04,272.00 for mark-up but this entry is reversed on the same day by a credit entry of Rs.1,04,272.00 which show that earlier debit entry has been reversed. Therefore, it need not be deducted., When the amount of two entries of mark-up mentioned at pages 20 and 23 of the statement for Rs.446,887.15 and 362,738.92 are deducted from the outstanding amount, the balance is reduced to Rs.34,139,254.29 in Account No.011030031401.
9. The outstanding balance in Account No.358030031401 filed by the plaintiff as Annexure P/4 is Rs.32,643,770.
10. Thus, the total outstanding balance all four accounts filed as annexures P/1 to P/4 without the incidence of mark-up is as follows:-- P-1.Rs.49,301,986.00 P-2.Rs. 5, 545, 859.72 P-3.Rs.34,139,254.29 P-4.Rs.32,643,770.00 TotalRs.121,630,869.99 The component of mark-up is shown only in two agreements of finance dated 5-9-2000 and 28-6- 2003 which are filed as Annexures D-1 and D-2 to the plaint. There is also rebate on mark-up in both the agreements. The mark-up, rebate and the rebated mark-up of both the agreements are as follows:-- Mark up Rebate Rebated mark up 36,232,876 1,323,876 Rs.34,909,000 5,994,970 4,350,970 Rs.1,644,000 Total rebated mark-upRs.36,553,000 When the rebated mark-up amount of Rs.36,553,000 is added to the outstanding balance amount of Rs.121,630,870.00 of all the four accounts the outstanding liability is determined at Rs.
11. 158,183,870.00.
12. For the foregoing reasons, the applications for leave to defend dismissed. The suit is decreed against the defendants in a sum of Rs. 158,183,870.00 with cost of funds to be charged w.e.f. 1-7- 2005 at the rates notified by State Bank of Pakistan. However, recoveries to be effected first through sale of -mortgaged properties belonging to defendant No.
1. In case the value of mortgaged properties are not sufficient to cover the decretal amount, then recoveries are to be made from the assets of the rest of the defendants except defendant No.5, who stood guarantors to defendant No. l's liability. On 3-11-2006 consent order was passed in connected Suit No.31 of 2005, whereby it was agreed by the parties that recovery of the decretal sum shall not be made from defendant No.5 but shall be first made from the rest of the defendants and only if any sum still _ remains to be recovered out of the decretal amount only then recovery shall be made from defendant No.5. In view of such consent order, the executing Court shall give effect to it while executing this decree.