' SYED HAMID ALI SHAH, J.---The plaintiff instituted the suit for recovery of Rs,313,337,146 against the defendant No,1/ borrower company and its seven Directors who were sued as guarantors.
Defendants Nos.2, 3, 6 and 7 through filing PLA 107-B-1998, sought leave to defend the suit.
Defendant No,1, has failed to file, the application for leave to defend, within stipulated period. The suit was decreed on dismissal of PLA No,107-B of 1998, vide judgment and decree dated 27-10-1998.
Defendant No, 5 subsequently filed an application C.M.No,1-B-1999 for setting aside ex parte decree, on the ground that wrong address of the applicant was mentioned in the plaint. The application was allowed and ex parte decree dated 27-10-1998, was set aside through order dated 1-3-2000. Defendant No,5 was allowed to file application for leave to defend the suit. The defendant filed PLA 48-B-2000 and the same was amended according to section 10(12) of Financial Institutions (Recovery. Of Finances) Ordinance, 2001. Amended application PLA 6-B of 2003 was allowed vide order dated 18-4-2003.
2. Following issues were framed and evidence of the parties was recorded, in response thereto:--
(1) Whether defendant No,5 executed and made the personal guarantee and as to whether the same was forged and fabricated? OPPs
(2) Whether plaintiff is entitled to decree prayed for in the plaint against defendant No,5? OPP
(3) Relief.
3. Learned counsel for parties addressed their arguments on conclusion of the trial and submitted written arguments as well.
4. Learned counsel for plaintiff contended that defendant No,5 executed the letter of personal guarantee (Exh.P-1 to Exh.P-1/D) and sponsors undertaking dated 21-5-1990 (Exh.P-2 to Exh.P/2-B).
Three witnesses of the plaintiff-Bank (P.W.2 to P.W.4) stated with due corroboration that defendant No,5, during the term of his directorship in the company, executed the letter of guarantee as well as undertaking. All the witnesses have stated that these documents were signed in the Foreign Exchange Branch of H.B.L. At M.A. Jinnah Road, Karachi. The plaintiff produced corporate record of the company, namely, Form 28 (consent to act as director), Exh.P6, Form 'A' dated 31-1-1991 (Return as to the share-holders of the company) as Exh.P-7, copy of Memorandum of Association of the company as Exh.P-8. The corporate .Record proves that defendant No,5 was shareholder and Director of the Company at the time of sanction and disbursement of loan. It was contended that the denial by defendant No,5, is evasive and not believable. The signatures of defendant No,5 on admitted document are similar in the characteristics and stroke of pen, with signatures on disputed document. Learned counsel went on to argue that denial by defendant No,5 without a positive proof, has no legal value. Learned counsel has submitted that corporate record and documents executed for financial assistance are public documents and as such are admissible in evidence. Defendant No,5, is not common or illiterate person. He is managing the affairs of another company (Saqib Industries) and is Chief Executive of Fashionware (Pvt.) Ltd. He is aware of consequences of putting signatures on letter of guarantee and other corporate documents of the company. He failed to get his name removed from the record of the company (judgment debtor No,1) speaks about the fact that he remained associated with the company right from it's inception till the institution of the present suit. Now the defendant cannot be permitted to take a somersault and run away from his liabilities. Learned counsel summed up his arguments with the contention that decree against other defendants has already been passed and plaintiff has successfully proved it's claim, therefore, decree against defendant No,5 is required under law to be passed.
' Learned counsel for defendant No,5, on the other hand, has contended that defendant No,5 has denied his relationship with judgment-debtor No,
1. Letter of undertaking/guarantee dated 21-5- 1990, bears forged signatures of the defendant and forgery has been committed by defendant No,2 in collusion with the plaintiff Bank. Letter of guarantee is not attested by two witnesses, as provided in Article 17 of the Qanun-e-Shahadat Order, 1984 and as such, the documents are inadmissible.
Wealth Tax Return of defendant No,5 proves that defendant has never claimed his association as a shareholder or a director of the company. The plaintiff has produced the witnesses, who were neither attesting witnesses of the documents nor the documents were executed in their presence.
The witnesses showed their ignorance about the relevant facts of the case. Not a single witness of the plaintiff has stated that letter of guarantee or sponsor's undertaking was signed in it's presence.
Learned counsel referred to the cases of Zulfiqar Ali v. Muhammad Sikria 1998 CLC 900 and Muslim Commercial Bank Ltd. v. Darya Khan Bangash 1994 M LD 1897, to contend that a document is proved through calling handwriting expert or calling the person who is acquainted with the handwriting of the writer or comparison of the disputed signatures by the Court. Plaintiff has failed to prove the documents according to the mode of proof as prescribed in Article 78 of the Qanun-eShahadat Order, 1984. Learned counsel then referred to the cases of Abdul Waheed v. Zahida Parveen and others 2005 M LD 48 and Maqsood Ahmad v. Salman Ali PLD 2003 SC 31 and conducted that a document which is not attested in terms of Article 17(2)(a) of the Qanun-e-Shahadat Order, 1984, is inadmissible and no decree on such document, can be passed. Learned counsel went on to argue that the witnesses which the plaintiff has produced, are custodian of record and from their statements, the document has not been proved. Learned counsel concluded his arguments with the contention that the project was taken over by CIRC in the year, 2003, which is not a party and no effective decree can be passed against the defendant.
5. Heard learned counsel for the plaintiff and record perused. Issue No,1
6. Defendant No,5 denied his signatures on letter of personal guarantee dated 21-5-1990 (Exh.P-1).
He pleaded that his brother in law, Mr. Shafiq Ahmad Sheikh (judgment-debtor No,2) in connivance with bank official prepared false and fabricated guarantee. The written statement as well as the evidence produced by the plaintiff in order to prove that defendant No,5 is the director of the company, comprises of Form 28 dated 28-4-1987 (consent to act as Director) signed by defendant No,5 (Exh.P-6), Form A dated 31-3-1991 i,e, the return as to the allotment of shares (Exh.P-7) where the defendant No,5 is shown shareholder as well as the Director. Memorandum and Articles of Association of the company (judgment-debtor No,1) was produced as Exh.P-8, which contains the signatures of the defendant No,5 as subscriber to the memorandum and also the articles of association of the company. The statement in lieu of prospectus was issued on 5-7-1987 (Exh.P-9) which contains the signature of defendant No,5 on it. The defendant No,5, on the other hand, negated these documents and assailed the validity of these documents through filing petition, under section 152 of the Companies Ordinance, 1984. The Company Court observed that factual controversy is involved and right course for rectification of the Register of the company is the civil suit. Defendant No,5, in view whereof, instituted the civil suit, which is pending adjudication. The documents i,e, letter of personal guarantee (Exh.P-1) and the undertaking (Exh.P-2) were assailed and cancellation thereof was sought through institution of suit (COS No,59-2000) but the suit was consigned to the record, without a decision in favour of the plaintiff (defendant No,5)
7. An application (C.M. No,343-B of 2003) was filed by the plaintiff for the examination of disputed signatures with admitted signatures of the defendant No,5, through handwriting expert. The application remained undecided.
8. The Court in certain eventualities enjoins plenary power to itself to compare the signatures along with other relevant material to effectively resolve the main controversy. While observing so, I am fortified by the dictum of the Honourable Apex Court in the case of Messrs Waqas enterprises and others v. Allied Bank of Pakistan and others 1999 SCM R 85. I have carefully adopted this process and compared various document, which contain admitted as well as disputed signatures of the defendant No,5. The similarity in the admitted and disputed signatures is lacking and they do not tally.
9. None among the witnesses of the plaintiff has stated that documents relied upon by the plaintiff were signed by the defendant No,5 in their presence. Neither marginal witness nor anyone in whose presence these documents were executed, was brought to the witness box. P.w.2 in his cross- examination, has showed his inability to tell as to whether fraud or forgery has been committed by the bank in collusion with defendant No,
2. The witness was unable to tell that defendant No,5 had any concern or connection with the bank. Letter of personal guarantee (Exh.P-1) and sponsor's undertaking dated 21-5-1990 are not signed and attested by the witnesses. The column of witnesses, was left blank. The subject loan was taken over by CIRC as Non-Performing Asset. The NBL, on dissolution of CIRC, stood transferred to National Bank of Pakistan. Not a single witness on behalf of "Acquirer", was produced. The statement of the witnesses, which the plaintiff produced, were not relevant. Star witness, before whom these documents were executed, was never examined. The plaintiff failed to prove the execution of letter of personal guarantee and sponsor's undertaking dated 21-5-1990. The corporate record is already under assail and the defendant No,5 cannot be held liable on the basis of such record.
10. The genuineness or otherwise of the disputed documents can be ascertained on the basis of available evidence and by comparing these documents. The signatures of defendant No,5 on (Exh.P-1 to Exh.P-9), on PLA written statement, on wealth tax statement passport and I.D card have been examined. The examination transpires that the signature of defendant No,5 on these documents do not resemble or tally with the signatures on Exh.P-1 to Exh.P-9. There is a visible difference of defendant's signature on the disputed documents and on his admitted documents which he signed in his normal course/ outline.
11. In the absence of cogent evidence. It cannot be concluded that defendant No, 5, signed these documents Exh.P-1 Exh.P-1/D. The issue is, therefore, decided in favour of the defendant No,5 and against the plaintiff.
' Issue No,2.
12. In view of findings on issue Nol, this issue is also decided against the plaintiff and in favour of defendant No,5.
Relief.
13. In view of my findings on issue No,1, the suit of the plaintiff is dismissed as against defendant No,5 along with pending applications with no order as to the costs.