1. ' DR, QAMMARUDDIN BOHRA, J.----The plaintiff United Bank Limited has filed this suit on 25-1-2007 for recovery of Rs,455,656,475.09 under section 9 of the Financial Institutions (Recovery of Finances)
2. Ordinance, 2001.
3. ' Perusal of record reveals that process under section 9(5) of the Financial Institutions (Recovery of Finances) Ordinance, 2001 issued to the defendants Nos.1 to 4 by all fourmodes. The plaintiff has produced the receipts of courier service and registered post A/D as well as Newspapers regarding, publication of summons in daily "Dawn" English Karachi dated 11-4-2007, daily "Nawa-e-Waqt" Urdu Karachi dated 12-4-2007 and daily -Khabrain" Urdu Islamabad dated 21-4-2007, The Diary of Additional Registrar dated 25-5-2007 further reveals that bailiff has returned the process duly served upon the defendants Nos.2 and 3 and no report received from the D.J. Lahore for defendants Nos.1 and 4. The statutory period for filing leave to defend the suit applications had expired but no leave to defend application had been filed, therefore, the Additional Registrar fixed the case in Court for final disposal in due course.
4. ' On 26-3-2008, the case had come up for final disposal before this Court when after hearing the arguments of Mr. Naveedul Haq Advocate for the plaintiff the judgment was reserved.
5. ' Precise facts of the case as contained in the plaint are that the plaintiff is banking company while the defendant No,1 is a public limited company and is a principal borrower. The defendants Nos.2 to 4 have been impleaded as pro forma defendants and no relief is sought against them, The defendant No,1 entered into Credit Agreemen t with bank Mee- & Hope N.V., Netherland for DFL 42,162,500 on August 3, 1990 and with Messrs Svenskahandels Banken, Sweden for SEK 59,840,000 on July 25,1990. The said Credit Agreements were required to be secured by a guarantee from a Scheduled Bank in Pakistan. It is further case of the plaintiff that at the request of defendant No,1, the plaintiff along with the other financial institutions namely (i) Habib Bank Limited (ii) Allied Bank of Pakistan and (iii) National Bank of Pakistan (hereinafter referred to as the consortium) entered into agreement to guarantee with the defendant on July 4, 1993. It is further averred in the plaint that under the terms of the said Agreement to Guarantee, the consortium, led by National Bank of Pakistan, agreed to provide a guarantee to the Bank Mees & Hope N.V. And Svenskahandels Banken on behalf of the defendant in respect of the credit facility for the amount of DFL 42,162,500 and SEK 59,840.000. Pursuant to the said Agreement to Guarantee National Bank of Pakistan provided guarantees in favour of Bank Mees & Hope N.V. And Svenskahandels Banken for the amount of DFL 42,162,500 and SEK 59,840,000. In pursuance of the aforementioned agreement to Guarantee, the plaintiff along with members of the "consortium" entered into Counter Guarantee dated August, 2, 1993 with the National Bank of Pakistan. Thereby the plaintiffs share in the said guarantee is to the extent of DFL 11,805,500 and SEK 16,755,200 i,e, 28% of the total guarantee amount plus interest thereon at the rate agreed upon in the Credit Agreement. The further case of the plaintiff is that the defendant No,1, as per clause 2.02 of the agreement to Guarantee is required to pay the following in addition to the principal amount of the Guarantee:-
(a) Mark-up @ 51 paisa per thousand per day on the amount of instalments;
(b) A legal documentation fee @ 1/4% on the amount of guarantee and @ 0.20% project monitoring fee;
(c) A guarantee commission @ 1.6% per annum of the total amount of Guarantee.
6. ' It is further asserted in the plaint that to secure and ensure the payment and discharge to the plaintiff of all moneys and liabilities due from the defendant No,1 under the agreement or on any other account or in any manner whatsoever and whether accrued, accruing or contingent, defendant No,1 created in favour of the plaintiff (along with the consortium) securities details of which are given in para 12 of the plaint. The defendant No,1 registered such charges created and/or evidenced by way of Memorandum of Deposit of the Title Deeds, Floating Charge and Hypothecation in favour of the plaintiff with the Companies Registration Office. The Companies Registration Office issued Certificate of Registration of Mortgage dated 23-6-1993 in favour of the plaintiff with regard to the Agreement of Guarantee.
7. ' According to the plaintiff, the defendant No,1 had failed to pay first five instalments of the credit due upto 30-6-1999 to the foreign banks, National Bank of Pakistan as per terms of the Agreement to Guarantee remitted the instalments amount. The plaintiffs proportionate share in the instalments amount @ 28% came to Rs,262,967,839 including mark-up which was reimbursed accordingly. On account of the persistent default on the part of the defendant No,1, the plaintiff was constrained to demand the outstanding liabilities with the mark-up @ 18.62% per annum. The defendant No,1 miserably failed/ refused/neglected to repay the outstanding liabilities. The plaintiff consequently filed a suit bearing No,4 of 2002 against the defendant No,1 for recovery of outstanding amount in respect of first five instalments aggregating to Rs,306,957,099 before this Court on January 9, 2002 and this Honourable Court was pleased to pass a decree vide order dated February 3, 2003 against the defendant for a sum of RA306,957,099 (Rupees Three Hundred six million nine hundred fifty seven thousand and ninety nine only) with markup at the prevailing rate from the date of the suit until realization of decretal amount along with cost of the suit. This Honourable Court was pleased to declare that the amount due to the plaintiff on the mortgage, hypothecated property and assets mentioned in the schedule in the sum of Rs,306,957,099 with mark--up at the prevailing rate from the date of suit until realization of the decretal amount and cost of the fund @ 5.98% as determined by the State Bank of Pakistan and cost of the fund @ 5.98% as determined by the State Bank of Pakistan and cost of the suit. This Court was further pleased to order for payment of any amount which the Court may have adjudged due to the plaintiff for such charges and expenses. It is further case of the plaintiff, that continued default on behalf of defendant No,1 in payment of the remaining nine due instalments to foreign banks National Bank of Pakistan paid the said amount and demanded reimbursement of proportionate share in the amount of nine due instalments from plaintiff and other member banks of the consortium. Plaintiffs share @ 28% in the amount deposited with State Bank of Pakistan came to Rs,293,217,877.29 which was reimbursed to National Bank of Pakistan vide SBP Cheque No,0714971 dated January 30, 2004 as per terms of the Counter Guarantee. According to the plaintiff, the National Bank of Pakistan had informed the plaintiff vide letter dated January 12, 2004 that the Government of Pakistan directed National Bank of Pakistan for making payment of the remaining nine instalments. National Bank of Pakistan also paid Rs,13,282,213 as wharehouse charges for the machinery/equipment laying at Hamburg, Germany. The National Bank of Pakistan also demanded reimbursement of Rs,2,689,138 which the plaintiff reimbursed on various dates details of which are given in para. 16 of the plaint.
8. The plaintiff at the end of para. 16 asserted that the defendant No,1 is also liable to pay Rs,2,689,138 on account of warehouse charges.
9. ' In last paragraphs of the plaint the plaintiff asserted that the defendant No,1 is under a legal obligation to repay the credit and liquidate the liability together with mark-up at the agreed rate of 51 paisa per thousand per day on the amount of the nine instalments. It is claimed in the plaint that on January 20, 2007 a total sum of Rs,455,656,475.09 is outstanding against the defendant No, 1.
10. According to the plaintiff, they are entitled to the cost of funds in terms of section 3 of the Financial Institutions (Recovery of Finances) Ordinance, 2001.
11. ' I have heard Mr. Naveedul Hari Advocate for the plaintiff, who has also submitted written points whereby certain reliefs in prayer clauses of the plaint, were not pressed. The written points have been perused and taken on record I have also gone through the record of the case. As already observed, the notices have been issued to the defendants by all four modes as provided under section 9(5) of the Financial Institutions (Recovery of Finances) Ordinance, 2001, but they failed to appear nor they filed any leave to defend the suit application. As such, there is nothing on record from the side of the defendants to dislodge the claim of the plaintiff contained in his plaint. In such facts and circumstances, the suit of the plaintiff is decreed against defendant No,1 only in the following terms:--
(a) The plaintiff is entitled for recovery of sum of Rs,455,656,475.09 from the defendant No, 1.
(b) The plaintiff is entitled for recovery of cost of funds at the prevailing rate from the date of the suit until realization of the decretal amount from defendant No,1.
(c) Decree for the sale of mortgage and Hypothecat property and assets of the defendant No,1 for recovery the decretal amount.