' MAULVI ANWARUL HAQ, J.---This suit was filed in this Court on 6-9-2006. It came up on 8-9-2006 when notices in the prescribed form were ordered to be served upon the defendants. The case came up on 19-10-2006 when it was noted that proclamation stands published but the time for filing the application is still there. On 17-10-2007 it was noted that defendants Nos.3, 5, 7, 8, 9, 10 and 11 have not filed any application for leave to defend whereas defendants Nos.1, 2, 4 and 6 have filed said applications but no one has turned up on their behalf. The said applications were accordingly dismissed for non-prosecution. C.M. 386-B of 2007 was filed for restoration of the said applications.
The case has been called no one has turned up for the said applicants. The said C.M. No,386-B of 2007 is accordingly dismissed for non-prosecution.
2. Notwithstanding the said dismissal of the applications for leave to defend and further dismissal of the application for restoration. I have examined the plaint, the PLAs and replies filed by the plaintiff in term of section 10(8) of the Financial Institutions (Recovery of Finances) Ordinance, 2001.
I may note here that PLA No,107-B of 2006 has been filed by defendants Nos. 1, 2 and 4 through Mr. Khurram Abbas, Advocate while PLA No,108-B of 2006 has been filed by defendant No,6 through Messrs Amjad All Mughal and Ch. Muhammad Razzaq Kalhoon, Advocates.
3. According to the plaint defendant No,2 the sole proprietor approached the plaintiff-Bank for export refinance facility for defendant No,1 as well as for other group concerns. The loan in the sum of Rs,125 million was sanctioned as FAFB vide sanction advice dated 11-3-2003. The loan was to be utilized by defendant No,1 as well as the other group companies owned, operated and managed by defendant No,2 as detailed in para.5 of the plaint. Several documents mentioned in para.7 of the plaint were executed. Thereafter on the request of defendant No,2 the said facility was enhanced to Rs,250 million to be used by all the group companies detailed in para.8 of the plaint. There is reference to another facility of Rs,60 million, which was sanctioned. The details of the securities are given in para.11 of the plaint while the details of mortgaged properties are given in para.13 of the plaint. The further details of securities are stated in para.15. The defendants were stated to have committed default in liquidating the said liability. The details of the amount claimed in the suit i,e, Rs,71,109,404.21 as per section 9(3) of the Ordinance are given in para.19 of the plaint. A decree was accordingly prayed for. In P.L.A. 107-B of 2006 defendants Nos.1, 2 and 4 have stated that no details of any default have been stated in the plaint. It has been objected that the limit expires on 31-8- 2003 under the first mark-up agreement and on 31-8-2005 under the second mark-up agreement, whereas mark-up has been charged after expiry of the said limits. The statement of account is stated to be false and fabricated. The sanction advice has not been produced. Some particulars purporting to be in accord with section 10(4) of the said Ordinance have also been stated. It has also been declared that the said applicants bona fide intend to clear all the liabilities of the bank on receipt of some claim on account of Sales Tax rebate from the Federal Government. The objection has been taken to the competency of the person filing the suit. The documents appended with the plaint are stated to be inadmissible. The draftsmanship of the author of the plaint has been criticized.
4. I find that nowhere in the said entire application availing or disbursement of the facility has been denied. There is no denial of execution of any of the documents relied upon by the plaintiff-Bank.
The statement in the application is not in accord with section 10(4) of the said Ordinance. Be that as it may, I have examined the statement of account with the assistance of the learned counsel for the plaintiff-Bank. So far as the statement regarding principal amount is concerned, nothing wrong with the same has been pointed out. However, I do find that in the statement regarding mark-up zero balance is shown as on 28-12-2005 this entry follows 30-8-2005 and 30-6-2005 and in between these two dates limit expired on 31-8-2005. This being so, there is no basis for the entries showing debit balance of Rs,2,469,404.21 as mark-up. However, the bank has not made any claim or any entry against the liquidated damage neither is there any penalty.
5. The suit has been filed and plaint has been signed and verified by Messrs Anwar Raza Rizvi and Akhtar Irshad. The power of attorneys are on record and these two reflect sufficient authority having been conferred upon the said persons to file the suit on behalf of bank to sign and verify plaint.
6. In P.L.A. No,108-B of 2006 objection to the authority of the said persons has been stated which has already been answered above. Otherwise it contains vague and nebulous allegations. However, there is a denial of execution of any guarantee. Regarding mortgage it has been stated that the documents have been prepared fraudulently through Halqa Patwari. However, in response to para.13 existence of property in sub-clause (vi) has been admitted while in response to para.15 wherein the mortgage documents executed by the said defendant No,6 on 26-9-2002 and registered on 3-10-2002 has been mentioned, reply is that it is denied for want of knowledge. A copy of the document is appended with plaint at pages 226 to 252 while general power of attorney executed by defendant No,6 in favour of the bank is present at pages 253 to 257 of the paper book.
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7. The said denial, therefore, is found to be without any substance. I, therefore, do find that no plausible defence in law or in fact stands made out in the said P.L.As. However, as noted above it is also found that the plaintiff-Bank is not entitled to recover Rs,2,469,404.21 as mark-up after expiry of the limit of the said mark-up agreement as on 31-8-2005. The suit accordingly is decreed in sum of Rs,68,640,000 in favour of the plaintiff-Bank and against the defendants jointly and A severally with costs of funds as prescribed w,e,f, 1-9-2005. In case defendants fail to pay the said decretal amount within 30 days, the proceedings shall stand converted into the execution proceedings and processed further in accordance with law.