1. ' SYED HASAN AZHAR RIZVI, J.---In view of order dated 17-1-2011 passed by this Court wherein it was directed that the matter be fixed after ten days and in case none appears for the defendants on next date the application may be dismissed. This matter was taken up in the morning but none was appeared on behalf of the defendants. It is 12-30 p.m. None is present on behalf of the defendants and no intimation is received, hence application for leave to defend bearing CMA No,1090 of 2010 is therefore, dismissed for non-prosecution.
2. ' Briefly the facts of the present suit are that the plaintiff filed the present suit on 1-7-2010 against the defendants under section 9 of the Ordinance, 2001 for recovery of Rs,76,080,292 along with liquidated damages, cost of funds charges, costs till the realization of the whole amount. On 1-10- 2010 the process under section 9(5) of the Ordinance, 2001 was issued to the defendants Nos.1 to 3 by all four modes including publications. As per Bailiff report the notices have been served upon the defendants and application for leave to defend has been filed on behalf of the defendants bearing CMA No,10290 of 2010. Notice of leave to defend application was waived by the plaintiff Counsel and copy was supplied to him and on 10-11-2010 the plaintiff filed replication.
3. ' The plaintiff stated in the plaint that the plaintiff is a national banking association incorporated under the federal laws of United States of America having a branch in Pakistan at AWT Plaza, I.I.
4. Chundrigar Road, Karachi wherefrom it is carrying on its normal banking business as a financial institution as defined in the Ordinance, 2001. It is also stated in the plaint that the defendant No,1 is a company incorporated under the laws of Pakistan having its place of business at W.S.A. 31, Block-14, Federal B Area, Karachi and defendants Nos.2 and 3 are guarantors of defendant No,l. Accordingly the defendants are customers of the plaintiff as defined in the Ordinance, 2001.
5. ' It is further stated in the plaint that this suit is being filed through Mr. Rana Fasih-ul-Hassan son of Rana Tajammal Hussain, who is the duly authorized officer of the plaintiff and is fully conversant with the facts of this case and has been authorized to sign and verify the plaint, and do all acts, deeds and things which are necessary and incidental thereto. It is further stated that upon request, representations and warranties of the defendants the plaintiff extended various finance facilities to defendant No,1 including an Export Finance Facility which was extended from time to time up-to a maximum limit of Rs,70,000,000 in terms of the following finance agreements:--
(i) Agreement for financing for short/medium term on mark-up basis dated April 1, 2007 for an aggregate amount upto Rs,52,000,000.
(ii) Agreement for financing for short/medium term on mark-up basis dated April 1, 2007 for an aggregate amount upto Rs,23,000,000.
(iii) Agreement for financing for short/medium term on mark-up basis dated April 1, 2008 for an aggregate amount upto Rs,70,000,000.
6. ' It is further mentioned in the plaint that in order to secure the finance facility following securities were created in favour of the plaintiff:-
(i) a first charge by way of hypothecation on all the company's present and future stocks and movables including but not limited to stocks garments finished and unfinished goods, stores and spares, raw materials, merchandise products, stocks in trade, work in process, packing material and chemicals, now or hereafter stored and located or lying at factory premises anywhere in Pakistan.
(ii) a first charge by may of hypothecation on all present and future book debts, receivables (including bills receivables), outstanding monies, cash claims, bills, contracts, engagements, securities and rights.
(iii) Personal guarantee dated April 18, 2005 of Mr. Mushtaq Abdullah and Mr. Rafat M. Abdullah.
(iv) Demand Promissory Note of Rs,72,800,000 dated April 1, 2007.
(v) Demand Promissory Note of Rs,32.200,000 dated April 1, 2007.
(vi) Demand Promissory Note of Rs,97,951,388 dated April 1, 2008.
7. ' It is also stated by the plaintiff in the plaint that the aforesaid Finance Facility was fully availed and utilized by defendant No,
1. However, the defendants in breach of the terms and conditions stated in various finance and security documents, which were duly executed by them, failed and neglected to replay the outstanding dues of the plaintiff as and when the same fell down The defendants have failed to perform their obligations in accordance with Finance Agreement and despite various demands and remainders by the plaintiff, the defendants have failed to pay the instalments and other liabilities amounting to Rs,76.080,292 in respect of the finance facility.
8. ' The plaintiff further stated that as a result of the persistent default by the defendants, the plaintiff recalled the finance facilities and served a legal notice through their counsel on the defendants on September 24; 2009, recalled the finance facility and called upon the defendants to pay a sum of Rs,72,814,443.24 together with liquidated damages and cost of funds within seven days, the said legal notice was not replied by the defendants. The plaintiff has prayed in the present suit as under:-- A. For payment and recovery of sum of Rs,76,080,292.
9. B. For permanent injunction restraining the defendants, their employees, agents or any ,other person acting for and on behalf, directly and/or indirectly from selling, alienating, disposing of or creating third party rights in any manner whatsoever in respect of the assets and properties charged in favour of the plaintiff. C. For sale of the hypothecated stocks and raw materials as mentioned in para 5(i) and (ii).
10. D. For payment of cost of funds in terms of section 3 subsection (2) of the Financial Institutions (Recovery of Finances) Ordinance, 2001 on the aforesaid amount from the date of default till date of realization at the rate determined by State Bank of Pakistan.
11. E. The suit may kindly be decreed with all other costs, charges and expenses incurred by the plaintiff in connection with the suit. F. For payment of liquidation damages in terms of clause 4 of the Finance Agreement.
12. G. To grant any other relief(s) which the Hon'ble Court may deem fit and proper in the circumstances of this case.
13. ' CMA No,10290 of 2010 which is application for leave to defend has been dismissed for non- prosecution in view of order dated 17-1-2011 passed by this Court.
14. ' Since the Application for leave to defend has already A been dismissed therefore, in view of section 10(11) of the Financial Institutions (Recovery of Finances) Ordinance, 2001 the present suit is decreed as prayed for in prayer clauses A, B, C, D and E in favour of the plaintiff. Office is directed to prepare decree accordingly.