1. MRS. QAISER IQBAL, J.---Through C.M.A. No.1989 of 2007, the defendant has applied for seeking leave to defend the suit filed by the plaintiff. Succinctly, facts leading to the case are that the plaintiff has resorted to file suit for recovery as well as damages against the, defendant on the premises that defendant No.1, is a Public Limited Company dealing in the discounting business and Government securities in capital market had entered into Outright Buying Contract, agreed to purchase from the plaintiff Pakistan Investment Bonds (PIBs) valued at Rs.282,753,005. According to contract settlement date was 21-6-2004, defendant No.1 breached the terms of the contract market value of the PIBs had gone down to the tune of Rs.259 million caused loss to the plaintiff; in respect of breach of the contract by the defendant No.1 time was allowed to settle the dispute agreed to execute a fresh contract of settlement dated 21-9-2004, to secure the shortfall arising on the settlement date of the original contract. Defendant No.2 furnished security by creating memorandum of deposit of title deed and general power of attorney was registered in favour of the Bank.
2. The defendant No.1 has handed over 5 cheques drawn on State Bank of Pakistan for an amount of Rs.1 million each, enumerated in para.8 of the plaint were dishonoured by the State Bank of Pakistan, therefore, plaintiff has resorted to file the suit' for recovery. On account of non-payment of shortfall in respect of PIBs.
3. Learned counsel for the defendant has contended that the defendants had resorted to file Suit No.9 r of 2005, which was returned for want of jurisdiction, Suit No.14 of 2006 was filed in the Banking Court No.2, Karachi, with the prayer to restrain the plaintiff from selling PIBs. Admittedly, the contract was executed between the parties for sale and purchase of PIBs at a higher price agreed to be paid on 21-9-2004. It is also admitted in para.6 of the application that cheque of Rs.6 million were delivered by the defendant No.1 to plaintiff to liquidate liability of shortfall which were dishonoured. It is contended that the plaintiff has committed fraud as sale agreement of PIBs was not reported to State Bank of Pakistan as the status of the defendant being purchaser. Of PIBs was not 'established from the record, the defendant has resorted to file Suit No.91 of 2005 in this Court, seeking injunction against the plaintiff, after withdrawal of the suit, plaintiff had malafidely adjusted PIBs of the answering defendant. I have heard arguments advanced at bar. Learned counsel for the defendants has laid much of the stress that defendant has proceeded to file Suit No.91 of 2005, the I :esent suit is the counter blast based upon the fraud played by the plaintiff as they were not in possession of the PIBs nor any legal right has accrued, on the contrary learned counsel for the plaintiff has relied upon the admission of the defendant No.1 for issuance of cheque of Rs.60,000,000 and Rs.2,000,000 to settle the shortfall but on presentation cheque was dishonoured towards the shortfall. The statement filed in replication on behalf of the plaintiff were not denied by way of filing affidavit of rejoinder by the contesting defendant, they cannot be allowed to appropriate and reprobate. In this context reliance is place on the reported cases (i) 1992 CLC Lahore page 3, (ii) 2003 MLD Peshawar page 816 and (iii) 1999 SCM R 1004.
4. Much of the stress has been laid on behalf of the defendants that agreement was executed between the parties was not reported to the State Bank of Pakistan, as per the report from the department Security' Division, since the transaction is related to the department. Of Exchange Debit Management Department of State Bank of Pakistan, the plaintiff has resorted to file rejoinder in suit filed by the defendants in Banking Court, stands dismissed, consequently HCA was filed which too was dismissed. Adverting to the defendants' plea that Suit No.91 Of 2005 has been filed by the defendant No.1 for seeking damages against the Bank. It is well settled that merely suit for damages filed by the defendant shall not be effect the present proceeding in terms of section 9(4) of Financial Institutions (Recovery of Finances) Ordinance, 2001, reliance in this context placed on 1987 CLC 2541. Dictum laid down is the "mere fact that the defendants Nos. 2 to 4 has-filed suit for damages against the plaintiff would not disentitle the plaintiffs from obtaining a decree in this suit, both the suits are to be disposed of on their own merits and for that reasons leave to defend the suit cannot be granted."
5. In view of the above discussion, defendants have failed to make out a plausible defence warranting investigation and trial in view of the documents placed on record and subsequent admissions by issuing the cheques in favour of the plaintiff for the shortfall occurred, C.M.A. No.1989 of 2007 hereby stands dismissed. Adverting to the prayer clause, plaintiff did not press claim of the fee incurred in the litigation as well as damages.
6. However, actual shortfall in devaluation of PIBs have been claimed, consequently the plaintiffs suit is decreed in a sum of Rs.25,697.310 along with the accrued mark-up at the rate of 20% per annum from the date of filing of suit till realization, mortgaged decree is passed for the sale of immovable property. These are the reasons for the short order whereby the plaintiff's suit was decreed on 10-4- 2007.