1. ' GULZAR AHMAD, J.---The first mentioned application is filed by the defendants under section 10 of Financial Institutions (Recovery of Finances) Ordinance, 2001 for leave to defend the suit to which replication is filed by the plaintiff while the second application is under section 151, C.P.C. Also filed by defendants wherein the defendants have sought enforcement and implementation of the decision of S.B.P. Committee and plaintiffs offer contained in its letter dated 21-8-2004.
2. ' The brief facts of the matter are that plaintiff has filed this suit for recovery of Rs,60,553,504.00 against defendants. Defendant No,1 has been sued as principal debtor while defendant Nos.2 to 5 are guarantors and defendant Nos.3, 4, 6 and 7 mortgagors. It is alleged that at the request of defendant No,1 plaintiff allowed from time to time since 1995 various financial facilities such as running finance, pre shipment, post shipment and foreign exchange bill purchase. As a security for the finance, defendant No,1 initially created hypothatication charge in favour of plaintiff in the sum of Rs,32,500 million each on its stocks and book debts which was subsequently modified to Rs,50,000 million pursuant to increase in the facilities through supplemental letters of hypothetication. Defendants Nos.3, 4, 6 and 7 deposited title deeds of their jointly owned immoveable property bearing No,6/38X, Survey Sheet 35-P/1, measuring 2000 sq. Yards in PECHS Karachi together with construction for which memorandum of deposit of title deeds was signed so also an irrevocable general power of attorney. It is alleged that post shipment finance was allowed in the sum of Rs,16,457,000 between 13-3-1998 to 25-6-1999 for which defendant No,1 submitted post shipment refinance documents as well as executed demand promissory notes. In respect of pre shipment finance, the defendants have availed an amount of Rs,14,247,000 between 31-5-2000 and 9-2-2001 for which the defendant No,1 executed undertaking and promissory notes. In respect of foreign bill purchase the defendant No,1 availed facility in the aggregate of Rs,3,185,435 and executed a buy back indemnity in favour of plaintiff along with Form 'E' and bill of lading. It is alleged that no payment was received by the plaintiff from abroad against document/bills and foreign Bank rejected/returned the documents of defendant No,
1. It is alleged that the defendant No,1 signed and executed by back agreement dated 31-7-2000 in respect of above mentioned four accounts. Personal guarantees were also signed and executed by defendants Nos.2, 3 and 4. It is alleged that defendant failed to pay its liabilities whereupon legal notice was served by the plaintiff where upon the suit was filed. The defendants have filed applications noted above.
3. ' Mr. Raja Qasit Nawaz, learned counsel for defendants has in the first instance argued second application that is C.M.A. No,9630 of 2005. He has contended that the plaintiff has not implemented the decision of the S.B.P. Committee so also offer made by its own letter dated 21-8-2004 and that both the decisions and offer contained in the plaintiffs letter may be implemented as the scheme under which S.B.P. Has given its decision is still in operation. In support of his submission he has relied upon 2004 CLD 257, PLD 1997 SC 315, 2002 CLD 542, PLD 2002 SC 500, 2002 CLC 166 and PLD 1999 SC 1026.
4. ' Mr. Arshad Tayabali learned counsel for the plaintiff has argued that the defendants have not themselves implemented the decision of S.B.P. Committee even though the plaintiff through its letter dated 21-8-2004 has asked the defendants to do so and that the defendants have not taken any steps, no benefit of the scheme can now be granted to them and the scheme also stands expired.
5. ' It appears that the State Bank of Pakistan through its BPD Circular No,29 dated 15-10-2002 has issued a scheme providing incentive to the borrower for settlement of their loans and the committee for resolution of the cases was also constituted. The defendants have approached the said committee. The committee gave its decision and communicated to the defendants vide its letter dated 22-6-2004 wherein it was noted that outstanding liabilities of the defendants was in the sum of Rs,45,504 million out of which the defendants were eligible under the scheme for the liability of FAFB in the sum of Rs,19,642 million pursuant to which the committee decided to settle FAFB liability on payment of Rs,12,677 million by making 10% down payment and balance 90% in 12 quarterly instalments over a period of three years. The plaintiff by its letter dated 1-8-2004 sought attention of defendant No,1 to the decision of S.B.P. Committee and noted that considerable time has lapsed but no positive consent is given by the defendant No,1 for implementation of Committee's decision and asked the defendant No,1 to contact the Bank to fulfil the Committee's decision. It appears that instead of contacting the Bank for the implementation of the decision of S.B.P. Committee, the defendant No,1 started writing letters to the plaintiff containing offers inconsistent with the decision of S.B.P. Committee. Admittedly the defendant No,1 has not contacted the plaintiff A for the implementation of decision of S.B.P. Committee nor it has made the 10% down payment. The defendant No,1 itself has not adhered to the decision of the forum of its own choosing and now not only it is too late for asking for its implementation but the defendant No,1 apparently has not accepted the decision as it has given to the plaintiff proposal not consistent with the decision of S.B.P. Committee. Case law relied by the defendant counsel has no application to the case in hand. Consequently, this application has no merit and is dismissed.
6. ' On the application for leave to defend the suit being C.M.A. No,6788 of 2002, learned counsel for the defendants has contended that defendant No,1 has obtained only three facilities in the year, 1995 from the plaintiff that is of Rs,15,50 million of FAFB, Rs,12.50 million of FAPC and running finance of Rs,5 million. He has submitted that the account of FAFB was operated and availed up to 1999 while the account of FAFC was availed up to February, 2001. He has submitted that as the case of the plaintiff is based upon dishonouring of the export bills, the plaintiff has neither given notice of dishonouring of the export bills nor such bills are filed and thus the plaintiff could not maintain its claim on account of dishonouring of export bills and has relied upon 2003 CLD 1370 and 2001 CLC 1172. He has further submitted that the plaintiff has obtained signatures of defendant on blank forms which it has filled in subsequently and thus are not binding upon the defendants and in support he relied upon 2002 MLD 1332 and PLD 1997 Karachi 62. He further submitted that plaintiff has charged mark-up over mark-up which it is not entitled under the law and has relied upon 2005 CLD 444, PLD 1998 Karachi 302, 2005 CLD 373, 2006 CLD 1678, 2005 CLD 833, PLD 2001 Karachi 264, 2004 CLD 385, 2002 CLD 276 and 2003 CLD 1007. He has stated that as there is serious dispute on the accounts a chartered accountant may be appointed and leave to defend the suit may be granted and in support has cited PLD 1963 SC 163, PLD 2001 Karachi 264, PLD 1999 Karachi 398, PLD 1984 Karachi 257, 1975 SCMR 393, 2004 CLD 110 and 2001 YLR 1244. On the other hand Mr. Arshad Tayabaly learned counsel for the plaintiff has contended that the defendants have admitted their liability to the extent of principal amount of Rs,45,504 million which is apparent in the decision of the S.B.P. Committee and that the plaintiffs claim is also the same as contained in the decision of S.B.P. Committee and that the defendants can not blow hot and cold in the same breath that of seeking implementation of decision and of denying the amount mentioned in it. He has stated that defendants have availed facility of FAFB, FAFC, foreign bills purchase and running finance and have signed executed documents and have not paid the dues to the plaintiff. He has submitted that the documents filed by plaintiff are not blank but they are filled in and even if they were blank, the same are protected under the law. He stated that no markup over markup is charged and not a single entry in the statement of account is disputed or challenged by the defendants. He has stated that no case for grant of the application for leave to defend the suit is made out and it may be dismissed.
7. ' I have considered the submissions of the learned counsel.
8. ' It is argued that the defendants have availed three facilities but as it appears that the defendants have not denied the signing of buy back cum indemnity, Form 'E' dated 9-2-1999 and bill of lading dated 11-2-1999 for availing of facility of foreign bill purchase. The arguments that documents were obtained in blank has no force for the reason that in the first place these documents are saved in terms of section 18(3) of the Financial Institutions (Recovery of Finances) Ordinance, 2001 and secondly the rule in this respect as laid down in the case of Messrs United Bank Ltd. v. President, Bazm-e-Salat PLD 1986 Kar. 464, Habib Bank Ltd. v. Waheed B Textile Mills PLD 1989 Kar. 371 and Messrs Bank of Oman Ltd. v. Messrs East Asia Trading Company Ltd. 1987 CLC 288 is that right to complete and inchoate document is statutory right without any restriction and could be completed within a reasonable time. It is not argued before me that the documents were filled in by the plaintiff within time which was not reasonable.
9. As regards the question of non-giving of notice of dishonouring of foreign bills and non filing of their copies, it may be noted that it is not disputed by the defendants that it has negotiated with the plaintiff foreign bills and that the foreign bills were dishonoured and not paid to the plaintiff.
10. Had the defendants disputed these facts, perhaps the burden would have been upon the plaintiff to prove the fact of dishonouring the bills by filing the notice of dishonouring so also the bills. That being not the case, therefore this submission has no force and the case-law relied upon is also distinguishable.
11. As regards the question of charging mark-up over markup, it may be noted that in the first place defendants have not disputed any of the entries contained in the statement of account filed with the plaint and even otherwise plaintiff counsel has taken me through the contents of the plaint and annexures filed with it which shows that the amount of Rs,51,774,883 is outstanding against the defendants as a buy back price in terms of agreement annexure J-2, J-3, J-4 which are agreements of finance and annexures 1-17 and 1-18. The submission of defendant counsel that the Chartered Accountant may be appointed to verify the accounts apparently is of no significance in view of fact that liability to the extent of the amount as noted above seems to be admitted as none of the documents filed with the plaint are in dispute.
12. ' By short order passed on 14-2-2007 the suit was decreed in the sum of Rs,51,774,883 against defendants jointly and severally with cost of fund from the date of default up to the date of recovery and cost of suit with decree for selling of mortgaged property and hypothecated goods.
13. Above are the reasons for the said short order.