' MUHARREM G. BALOCH, J.---The plaintiff Industrial Development Bank of Pakistan having its head office and regional office at Karachi, has filed the present suit under section 8 of Financial Institutions (Recovery of Finances) Ordinance, 2001, for cancellation of package arrangements and recovery of Rs,331,237,411.73 under the package.
2. Precisely, the facts of the plaintiffs case are that the plaintiff is a banking company constituted under Industrial Development Bank of Pakistan Ordinance, 1961 whereas the defendants are public limited companies trading at Karachi in ceramics and hotels amongst other enterprises. It is pleaded by the plaintiff that the defendant No,1 had a project duly financed by the bank in 1987 through a blend of financial supports amounting to Rs,126,065 million. The project started in, 1992 but collapsed after two years and was declared as sick unit. In 1997 as per package loan liability of IDBP. The plaintiff, was restricted at Rs,329.968 million and then serviceable principal liability was fixed at Rs,126.090 million payable with markup at 13.5% in 10 years with a grace period of two years w,e,f, 30-9-1999, remaining portion of unserviceable liability of Rs,203.878 million was to be frozen and written off upon implementation of the package. It is the case of the plaintiff that the defendant backed out from the above arrangement and the defendant No,1 in the year, 1999 introduced another intending purchaser for the purchase of project assets accordingly. The package was approved envisaging payment of Rs,123.000 million by 8-6-1999 which was not made. The defendant No,1 then approached the plaintiff with another repayment plan as per the following arrangements:--
(i) Down payment of Rs,7.881 million.
(ii) Payment of Rs,15 million by 31-12-1999 from own sources or through sale of properties mortgaged with Bank.
(iii) Placement of Deposits of Rs,60.000 million with Bank under lien on which profit is payable by Bank @ 16.667% p.a. With half yearly rests, to be used for payment of serviceable liability.
(iv) Liquidation of serviceable liability of Rs,103.209 million in 25 years from the half yearly profit @ 16.667% payable on deposit of Rs,60.000 million maintained with the Bank. The liability was bifurcated into two portions 1st part of Rs,55.926 million is payable in 14 years with mark up @ 13.5% while repayment of 2nd portion of Rs,47.284 million shall start after 14 years upon liquidation of first portion. No interest on the 2nd portion is to be charged till repayment of first portion (thus waiving mark up for a period of 14 years on the 2nd portion).
(v) Upon liquidation of serviceable liability from the profit of deposit, the deposit amount of Rs,60.000 million shall be refunded to the borrowers after 25 years.
3. The plaintiff further pleaded that on 28-6-1999 the plaintiff referring the letter of defendant No,1 accepted the proposal for settlement of its loan/dues in the captioned scheme subject to the following terms and conditions:--
(i) Defendant will make down payment of Rs,7.881 million by 30-6-1999 to be adjusted against principal restructured loan.
(ii) Defendant will make further repayment of Rs,15.000 million by 10-11-1999 which shall be adjusted against restructured principal amount. The collateral security held by the Bank shall be released after receipt of the said payment.
(iii) Defendant will deposit of Rs,60.000 million with the Bank by 10-11-1999. The said amount will remain under Bank's lien for the next 25 years. The profit on the said deposit will be paid @ 16.667 p.a. (to be calculated at half yearly rests). The said profit net of withholding tax etc. Will be adjusted towards restructured loan of Rs,103.210 million (net of down payment of Rs,7.881 million and further payment of Rs,15.000 million) carrying interest 13.5% p.a. On half yearly basis.
(iv) Defendant will be absolved of entire outstanding liabilities of the Bank by making aforementioned payments and deposit. However, the defendant will not demand any further benefit from the Bank against above payment/deposit. Defendant may withdraw the deposit of Rs,60.000 million without any profit/interest/markup etc. After 25 years from the date of making deposit.
(v) After receipt of above payment/deposit the Bank shall vacate its charge over project fixed assets. However, title documents shall be released after receiving NOC from other charges holder (s).
(vi) Subject to receipt of payment/deposit in the aforementioned manner, the mark-up @ 13.5% p.a. During additional grace period w.e.f 10-2-1998 to 10-1.11999 shall be frozen to be adjusted against profit on deposit to accrue after adjustment of restructured principal loan in full.
(vii) Defendant will settle their liabilities with other creditors at their own.
(viii) In case of non-compliance of aforementioned terms/ conditions within prescribed period and or default in making payment of Rs,7.881 million before 30-6-1999 and payment of Rs,15.000 million/deposit of Rs,60.000 million by 10-11-1999 the Bank may withdraw these arrangements with retrospective effect and initiate suitable action against you to safeguard its interest. The proposal was accepted on 19-6-1999 by the defendant No,1 in handwriting duly signed by him.
4. The monitoring department of the plaintiff submitted status report of the defendant No,1 elucidating the progressive factual financial position of the defendant No,
1. The said inspection report was also made available by the department RAM of the plaintiff bank of which the details are annexed with the plaint.
5. The defendant No,1 eventually under the subject of revival of such project in terms of SBPs BPRD Circular No,19 dated 5-6-1997 addressed a letter to the plaintiff, inter alia, saying that the defendant No,2 have expressed their intention to acquire assets of defendant No,1 free from all encumbrances, lien, charges, dues and claim etc. And the entire down payment of Rs,22.881 million against the total unserviceable restructured liability of the defendant No,1 of Rs,126.091 million having paid the balance of Rs,103.210 million with markup thereon. The defendant No,2 will make direct payment to the plaintiff on that behalf in 50 bi-annual equal instalments of Rs,4.50 million w,e,f, 10-5-2000 and the defendant No,2 having deposited Rs,60.000 million against which the plaintiff Bank will issue a long term fixed deposit (F.D.R.) for 25 years which will earn a fixed minimum return at 16.667% per annum payable at half yearly rests. This FDR will remain with the plaintiff for a period of 25 years and the profit accruing to the defendant No,2 on it after deduction of withholding tax will be adjusted against the balance of the amount of serviceable restructured liability of the defendant No,1 including the mark up. It Is further stated by the plaintiff that on 19-11- 1999 the plaintiff accepted the offer made by defendant No,2 on the terms and conditions incorporated in the letter and the defendant No,2 addressed a letter dated 7-6-2004 reminding to pay the accrued interest on TDR which was reduced from 16.667% per annum to 12.000% as per prevailing law. According to the plaintiff on the cumulative facts as stated above against accounts whereof were maintained under the head of defendant No,1 and the liability position as on 30-6- 2004 under the package scheme showing the liability resulted pari passu to the sum of Rs,331,273,411.73. The plaintiff in furtherance of the above issued nine numbers of guarantees in favour of custom for which demand notices to the extent of Rs,14.183 million was served by the customs authorities on 7-2-2003 lying pending settlement having been refused and neglected to be honoured by the defendants. In furtherance thereof another letter dated 11-2-2004 was served by the Appraisement Collect orate. According to the plaintiff the whole transaction of the package arrangement reveals as under:--
(i) That the package arrangements suffers from lack of business consideration and being unsecured and left the bank exposed to Rs,285.456 million on 31-5-2004 being unsecured and unprotected.
(ii) that the interest is only payable, if any as per prevailing law and not as agreed.
(iii) That the transaction is void under section 8 of the Financial Institutions (Recovery of Finances)
Ordinance No,XLVI of 2001.
6. The legal notice in terms of the above was served upon defendants on 23-8-2004 but to no effect. Hence as per statement of account duly certified a total sum of Rs,331,273,411.73 as on 30-6- 2004 is due against the defendants payable to the plaintiff jointly and severally under the package agreement. Thus, the above default gave cause of action to the plaintiff to bring the suit against the defendants with the following prayers:--
(a) Declare that the financial package arrangements entered into between the parties wherein FDR of Rs,60.000 million as kept with the plaintiff bank and the accrued interest at the fixed rate of 16.667% payable towards the advance and refund of the FDR in the like amount within the period of 25 years is unconscionable, without consideration and against bona fide leaving the plaintiff bank to a exposure irreversible and without remedy and in violation of section 8 of Financial Institutions (Recovery of Finances) Ordinance No,XLVI of 2001 and as such be revoked.
(b) Decree by way of adjustment against the defendants in the sum of Rs,331,273,411.73 with cost.
(c) Decree for the amount of Rs,14,182,831.00 In lieu of guarantees stood for and on behalf of the defendants to the Customs Authorities.
(d) Such further and better relief as this Honourable Court deem just, proper and beneficial to the petitioner (plaintiff) in the circumstances and in the interest of justice of this case.
7. The defendant No,1 has filed leave to defend application which was granted and the same was treated as its written statement. According to the preliminary objections of the defendant No,1 taken in the written statement the plaint and the suit has not been properly instituted and constituted as such the same is liable to be rejected. It is also pleaded by the defendant No,1 that the suit filed by the plaintiff is not maintainable in law as the same has been filed without the resolution passed by the Board of Directors of the plaintiff as required under the law. It is further stated by the plaintiff that the alleged claim of the plaintiff is false, arbitrary, unauthorized and based on concocted and false pleas, which is not maintainable and the defendants are not at all to pay the unwarranted claim of the plaintiff nor the plaintiff has any right or ground to cancel the package arrangement and ask for recovery of the aforesaid amount.
8. The defendant No,2 has also filed an application for leave to defend which was granted and the same was treated as his written statement. The defendant No,2 has almost taken the same grounds as of defendant No,1 and prayed for dismissal of the suit.
9. Out of the pleadings of the parties following issues were framed on 28-4-2005:--
(1) Whether the defendants entered and procured arrangement unconscionable without consideration being not bona fide in violation of section 8 of the Financial Institutions (Recovery of Finances) Ordinance, 2001?
(2) Whether the defendant No,2 being privity or not of the deal, if so, to what effect?
(3) Whether filing of the suit is approved by the Board of Directors of the plaintiff, if not whether the suit against the defendants Nos.1 and 2 is maintainable under the law?
(4) Whether the Settlement Package dated 18-11-1999 and 10-11-1999 between the plaintiff and the defendant No,1 suffered from any illegality? If so, what is the effect?
(5) Whether the plaintiff is entitled to revoke the package arrangements?
(6) Whether the collaterals, such as guarantees/personal securities having been released and discharged and the charges, lien, claim etc., on the moveble and immovable assets having been released and withdrawn by the plaintiff in terms of package arrangement in November, 1999 can be recalled by the plaintiff? If so, what is its effect?
(7) Whether the plaintiff is entitled to arbitrarily reduce the agreed interest rate on the defendant No,2's Long Term Fixed Deposit Receipt of Rs,60 Millions?
(8) Whether any amount as claimed in suit is due and payable by the defendant No,1 to the plaintiff? If not, what is the effect?
(9) What should the judgment and Decree be?
10. In support of its claim the plaintiff has examined P.W.1 Jamil Ahmad as Exh.4, who produced copy of plaint in Suit No,B-34 of 2004 as Exh.P/1, original letters dated 22-6-1999 and 28-6-1999 as Exhs.P/2 and P/3, status report as Exh.P/4, original letters dated 18-11-1999, 19-11-1999, 7-6-2004 and 11-2-2004 and eight other letters as Exhs.P/5 to P/15 and copy of settlement of account as Exhs.P/16-A to P/16-G. Plaintiff also examined P.W.2 S.M. Aqeel as Exh.6 who produced his affidavit- in-evidence as Exh.7 and relied on the same documents as exhibited by P.W.1 Jameel Ahmed. Both these witnesses were cross-examined by the defendants. The plaintiff thereafter closed its side.
11. The defendant No,1 filed affidavit-in-evidence of D.W.1 Akbar Karamali, who is the Chief Executive of defendant No,1 company as Exh.8. He produced his affidavit-in-evidence as Exh.9 and the documents i,e, copy of resolution dated 7-12-2006 as Exh.D/1, resolution dated 2-11-2004 as Exh.D/2, correspondence exchanged between the parties in the suit, the State Bank of Pakistan, SITE and certificates confirming satisfaction of charge issued by the Deputy Registrar of Companies as Exhs.D/3 to D/26 and closed its side.
12. Defendant No,2 filed affidavit-in-evidence of one Muhammad Akbar Bawany being Executive Director of the defendant company and authorized attorney of defendant No,2 as Exh.10. He has produced his affidavit-in-evidence as Exh.11. He also. Produced original copy of Board Resolution dated 8-12-2003 and original memorandum of understanding dated 8-9-1999 as Exh.D-2/A and Exh.D-2/2, original agreement of sale dated 13-6-2000 as Exh.D-2/2, original copy of public notice published in Daily Dawn dated 16-6-2000 As Exh.D-2/3 and photocopy of letter dated 1-9-2004 as Exh.D2/4 and closed its side. Both the defendants were cross-examined.
13. Case of the plaintiff is based on the financial package arrangements entered into between the parties wherein F.D.R. Of Rs,60.000 Million as kept with the plaintiff Bank and the accrued interest at the fixed rate of 16.667% payable towards the advance and the refund of the F.D.R. In the like amount within a period of 25 years is unconscionable, without consideration and against bona fide leaving the plaintiff Bank to exposure irreversible and without remedy and in violation of section 5 of the Financial Institutions (Recovery of Finances) Ordinance No,XLVI of 2001 and as such be revoked. Consequent upon such revocation the plaintiff has prayed for a decree by way of adjustment against the defendant in the sum of Rs,331,273,411.73 with costs and so also amount of Rs,14,182,831.00 in lieu of guarantees stood for and on behalf of the defendants to the customs authorities with other reliefs.
14. I have heard Mr. Habib-ur-Rehman, learned counsel for the plaintiff, Mr. Ghulam Abbas Pishori, learned counsel for the defendant No,1, and Mr. Zahid F. Ebrahim, learned counsel for the defendant No,2, and perused the material available before me. My findings on the above issues are as under:- - ' Issue No,1 = Affirmative ' Issue No,2 = Affirmative ' Issue No,3 = Affirmative ' Issue No,4 Affirmative ' Issue No,5 Affirmative ' Issue No,6 Affirmative ' Issue No,7 Affirmative ' Issue No,8 Affirmative ' Issue No,9 Suit is decreed with costs.
' Reasons for the above findings are as under:-- Issue No,1 ' The entire case of plaintiff revolves around this issue. On this issue the plaintiff has examined P.W.1 Jamil Ahmed and P.W.2 S.M. Aqeel. Both these witnesses are Vice-President and Assistant Vice- President in the plaintiff Bank. They have deposed the facts as mentioned in the plaint and stated that the whole transaction of the package agreement arrangement suffered from lack of business consideration and left the bank exposed to Rs,285.456 million on 31-5-2004 being unsecured' and unprotected. They have further deposed that financial package agreements entered into by the parties are without consideration and against bona fide business consideration thus being void, mala fide and untenable and in violation of section 8 of Financial Institutions (Recovery of Finances) Ordinance, 2001 and prayed for its revocation. Both these witnesses were cross- examined by the defendants. The defendant No,1 suggested P.W.1 "what do you mean by lack of business consideration as stated by you in para. 14 of your affidavit-in-evidence?" to which the witness replied, "I cannot add further what I have stated in the said para". Para. 14 of the affidavit- in-evidence speaks about the transaction between the parties is void under section 8 of Financial Institutions (Recovery of Finances) Ordinance, No,XLVI of 2001. This witness so also other witness of the plaintiff were subjected to lengthy cross-examination one extract from the same is as under:-- "That the defendant No,1 started the business in 1992 a project collapsed after two years and was restructured at Rs,329.968 million and serviceable principal liability was fixed at Rs,126.090 million payable with mark-up @ 13.5% in 10 years with a grace period of two years w,e,f, 20th September, 1999, and the remaining portion of unserviceable liability of Rs,203.78 million was to be frozen and written off."
' It is contended by the plaintiff that the defendant No,1 backed out from the above arrangement and the defendant No,1 in the year, 1999 introduced another intending purchaser for the purchase of assets accordingly. Thus the package was approved envisaging payment of Rs,123.000 million by 8-6-1999 which was not made. The defendant No,1 then approached the plaintiff with another repayment plan as per arrangements mentioned in the facts of the case.
' It is agitated by the plaintiff that the defendant No,1 under the subject revival of sick project in terms of SBPs BPRD Circular No,19 dated 5-6-1997, addressed letter to the plaintiff inter alia, said that the defendant No,2 have expressed their intention to acquire assets of defendant No,1 free from all encumbrances, lien, charges, dues and claim etc, and the entire down payment of Rs,22.881 million against the total serviceable restructured liability of the defendant No,1 i,e, Rs,126.091 million having paid the balance of Rs,103.210 million with mark up thereon. The defendant No,2 shall make direct payment to the plaintiff on that behalf in 50 bi-annual equal instalments of Rs,4.50 million w,e,f, 10-5-2000 and defendant No,2 having deposited Rs,60.000 million against which the IDBP has to issue a long term fixed deposit (F.D.R.) for 25 years.
' The above offer made by defendant No,2 was accepted by the plaintiff on 19-11-1999 on the terms and conditions as incorporated in the letter. However, the defendant No,2 issued a letter dated-7- 6-2004 reminding to pay the accrued interest on T.D.R. Which was reduced from 16.667% per annum to 12.000% as per prevailing law. The plaintiff contends that the package arrangements suffer from lack of business consideration and being unsecured and unprotected and left the bank exposed to Rs,285.456 million on 31-5-2007. According to him, the interest is only payable as per prevailing law and not as agreed. Thus the transaction is void under section 8 of Financial Institutions (Recovery of Finances) Ordinance, 2001.
The version of these witnesses in, respect Of the transaction between the parties and procured arrangement was not controverted specifically. As such, the same is unconscionable, without consideration, being not bona fide thus in violation of section 8 of Financial Institutions (Recovery of Finances) Ordinance, 2001. In this connection reliance is placed in case law reported in Taufiq Textile Mills (Pvt.) Ltd. v. Industrial Development Bank of Pakistan PLD 1999 Karachi 71. Considering the law laid down in the above citation, I am of the view that the plaintiffs have discharged their burden whereby proving that the transaction between the parties and procured arrangement was unconscionable without consideration and so also being not bona fide thus in violation of section 8 of Financial Institutions (Recovery of Finances) Ordinance, 2001, thus, the issue is answered in affirmative.
' Issue No,2.
The plaintiff through its plaint and witnesses deposed that the defendant No,2 has stepped into the contract/package arrangement made with the defendant No,1 for discharging the liability of defendant No,
1. The plaintiff contended that the defendant No,2 is the beneficiary substituted defendant No,1 for the repayment of the loan by a device not acceptable in accordance with section 8 of the Ordinance, 2001, thus cannot be a privity.
' The contention of the plaintiff that the defendant No,2 stepped into the contract/package agreement made with the defendant No,1 is not denied by both the defendants.
' Under such circumstances, it cannot be accepted that there was any transaction with the defendant No,2 independently. But he was introduced by the defendant No,1 to discharge his liability. As such, I hold that the defendant No,2 was not privity to the transaction made with the defendant No,
1. Issue is answered accordingly.
' Issue No,3.
This issue is framed from the pleadings of the defendants. According to them the suit is not maintainable for the reason that there is no approval of the Board of Directors of the plaintiff, therefore, the suit could not lie against the defendants as envisaged in case law reported in PLD 2002 Karachi 426 and 1994 CLC 2133. To the above proposition the plaintiff has referred para. 22 of the plaint wherein reference was made to the gazette notification No,BD(iii) of 1967 published in the Gazette of Pakistan. Part V dated 14-7-1967 at page 280 to 282 as amended by the plaintiffs Board of Directors at its meeting held on 21-5-1974 and published in the Gazette of Pakistan Part VI dated 13-9-1974 at page 245 empowering by notification as amended by the Board of Directors authorizing one Atiq Ahmed, who has verified the plaint and also sworn affidavit and was produced as a witness in the suit. According to the plaintiff the notification as such stands on higher pedestal than the resolution therefore section 8(2) of Financial Institutions (Recovery of Finances)
Ordinance, 2001, is not the bar and the suit is maintainable. The plaintiff has relied on case law reported in PLD 1999 Karachi 71. In the above reported citation section 39 of the Industrial Development Bank of Pakistan Ordinance, 1961 defines very specific and have been designed for prompt recovery of dues of the statutory bank, therefore, objections of the borrower on the technical ground is inconsistent to the material and the merits of the case on record and is inconsistent to the Industrial Development Bank of Pakistan Ordinance, 1961. In the light of above legal position the issue No,3 is answered that the suit against the defendants is maintainable under the law.
' Issue No,4.
This issue is bone of contention between the parties and very crucial therefore the finding on this issue will decide the fate of entire case. According to the plaintiff the settlement package dated 18- 11-1999 and 10-11-2000 between the plaintiff and defendant No,1 suffers from illegality. It is the case of the plaintiff that defendant No,1 started the business in 1992 on a project which collapsed after two years and was declared as a sick unit. In 1997 package loan liability of the plaintiff was restructured at Rs,329.968 million and serviceable principal liability was fixed at Rs,126.090 million payable with mark-up at 13.5% in 10 years with a grace period of two years w,e,f, 30-9-1999 and the remaining portion of serviceable liability of Rs,203.878 million was to be frozen and written off, therefore, the case fallen within the ambit of section 8 of Financial Institutions (Recovery of Finances) Ordinance, 2001. The plaintiff further submitted that the liability however, was concluded by acceptance of offer from the plaintiff for the reasons not being bona fide. According to him for the revival of sick projects in terms of SBPRD Circular No,19 dated 5-6-1997, the defendant No,2 stepped in for discharging the liability of defendant No,1 on the basis that the balance amount of serviceable restructured liability of Rs,103.210 million including the mark up i,e, total 126.091 million and deposit of Rs,60.000 million all the collaterals by way of that scheme on the movable and immovable assets of defendant No,1 along with personal guarantee as security for the loan having the lien thereon by the plaintiff bank instantly released. The above transaction obviously and ostensibly gave no credential benefit being mala fide and created irresistible doubt, which comes positively within the ambit of section 8 of Financial Institutions (Recovery of Finances) Ordinance, 2001. The above facts have neither been denied by the parties in evidence but the contrary in cross-examination by the witnesses of both the defendants have admitted that such an arrangement/consideration has neither been known in history of the banking transaction nor by themselves being a giant in trade have ever entered into such a speculated transaction with any other Bank. It is further contended by the plaintiff that in case the agreement between the parties is not enforceable by law is said to be void as defined under section 2(g) of Contract Act, 1872. It is further contended that section 2(j) of Contract Act, 1872 speaks that a contract which ceases to be enforceable by law becomes void when it ceases to be enforceable. Section 56 of the Contract Act says that an agreement to do an act impossible is itself void. The above proposition of law is approved in case law reported in PLD 1976 SC 258 wherein the interpretation of words "void" and "voidable" are defined. In the same way in PLD 1968 Karachi 196 (D.B) has interpreted section 65 of the Contract Act, 1872 that if there is a contract made enforceable by operation of law, the fraudulent beneficiary to compensate. It is the case of the plaintiff that defendant No,2 is a fraudulent beneficiary therefore he is liable to compensate.
' In view of the foregoing reasons and agreeing with the proposition laid down in the case law referred to above. I am very clear in my mind that in the instant suit amount is payable by the plaintiff for the consideration not being bona fide and the defendants jointly and severally have to compensate the plaintiff for all the dues subject to all deductions, if any, for the amount deposited or accrued interest yield upon that account deposited. Consequently the issue No,4 is answered in affirmative and the defendants are liable to compensate the plaintiff.
' Issue No,5 In view of my discussion and findings on issue Nos.1 and 4 above as the same are inter linked with this issue, this E issue is answered in affirmative.
' Issue No,6.
This issue is interconnected with the issue No,4 and since I have held that the settlement package dated 8-11-1999 and 10-11-1999 between the plaintiff and defendant No,1 suffered from illegality, therefore, the collaterals, such as guarantees/personal securities having been released and discharged and the charges, liens, claim etc. On the movable and immovable assets having been released and withdrawn by the plaintiff in terms of package arrangement in November, 1999, can be recalled by the plaintiff in terms of section 8 of Ordinance, 2001 and so also in terms of package arrangement made in November, 1999. Consequently, issue is answered in affirmative.
' Issue No,7.
The learned counsel for the plaintiff in respect of his case pertaining to the issue in hand submitted that the interest is not static but variable as being fixed from time to time by the State Bank of Pakistan which is binding on both the parties, therefore, no agreement can subsist on the fixed interest basis and as such the rates are variable as fixed by the State Bank of Pakistan.
' The learned counsel for the defendants could not controvert the legal proposition. Consequently agreeing to the submissions made by the plaintiff, the issue in hand is answered in affirmative.
' Issue No,8.
' In view of my findings on issues Nos.1, 4, 6 and 7 I hold that the amount claimed in the suit is due and payable by the defendant No,1 to the plaintiff. Issue is answered in affirmative.
' Issue No,9.
' As a result of upshot of my findings on the issues Nos.1 to 8, the suit of the plaintiff is decreed as prayed with costs.