1. ' SYED HASAN AZHAR RIZVI, J.---None is appearing for the defendants on last several dates and on 27-5-2011 last and final chance was given to the Counsel for the defendants and it was observed that if none appears for the defendants on the next date of hearing the Application for leave to defend may be dismissed. Today none is in attendance on behalf of defendants and even no intimation has been received so far. A Matter was taken up in the earlier part of the day. It is 11-35 a.m. Application for leave to defend bearing C.M.A. No,11536 of 2010 is dismissed for non- prosecution.
2. ' Briefly the facts of the present suit are that the plaintiff filed the present suit on 26-7-2010 against the defendants under section 9 of the Financial Institutions (Recovery of Finance) Ordinance, 2001 (hereinafter referred as to "Ordinance 2001") for recovery of Rs,277,574,446.03 along with cost of funds, charges, costs, till the realization of the whole amount. The process under section 9(5) of the Ordinance, 2001 were issued to the defendants Nos. 1 to 7 by all four modes including publications and service was held good. Applications for leave to defend has been filed on behalf of the defendants bearing C.M.A. No,11536 of 2010 on 6-9-2010. Notice of leave to defend application was waived by the plaintiff counsel and copy was received by him and on 3-12-2010 the plaintiff filed replication.
3. ' The plaintiff in the plaint stated that the plaintiff is a banking company existing under the laws of Pakistan having its registered office at P.O. Box No,5556, LI. Chundrigar Road, Karachi wherefrom it is carrying on its normal business as a financial institution as defined in the Ordinance, 2001.
4. ' It is further stated in the Plaint that the defendant No,1 is a private limited company having its registered office at 316, 3rd Floor, Continental and Trade Centre, Shahrah-eIqbal, Block-8, Clifton, Karachi and defendants Nos.2 to 7 are the Guarantors of defendant No,1 and have executed their personal guarantees to secure the liabilities of defendant No, 1 . It is further stated that at the request of the defendants and upon the representations, warranties, undertakings and personal guarantees of the defendants, the plaintiff from time to time extended a running finance facility to defendant No,1 pursuant to the following finance agreements:--
(i) Finance Agreement dated July 20, 2007 for an aggregate amount up to Rs,250,000,000.
(ii) Finance Agreement dated July 31, 2008 for an aggregate amount up to Rs,400,000,000 and
(iii) Finance Agreement dated August 1, 2009 for an aggregate amount up to Rs,250,000,000.
5. ' It is mentioned in the Plaint that in breach of the terms and conditions as stated in the Finance Agreements, defendant No, 1 has failed to repay its outstanding obligations in the prescribed installments falling due from time to time on their respective due dates. Such failure to pay the purchase price and other amounts payable by the defendants, as notified by the plaintiff from time to time, constitutes an event of default under the terms of the Finance Agreement. The liabilities of defendant No,1 are secured by the following securities:--
(i) A first pari passu charge for an aggregate amount of Rs,400 million by way of hypothecation vide a Letter of Hypothecation over Plant and Machinery dated September 3, 2007 as amended vide a Supplemental Letter of Hypothecation dated November 15, 2007 over defendant No,l's plant, machinery and building lying anywhere in Pakistan including but not limited to the following:-
(a) All Plant, Machinery and Building including Bridge and Boundary at Machhike, Sheikhupura on Sargodha Road, Punjab.
(b) All Building and Machinery lying at a various sites mentioned below:--
(i) Afridi Filling Station, Matiarri, Hyderabad, Sindh on Plot of Land bearing Survey Nos.318 and 581 sitauted at Sahib Saman Tapa Matiari.
(ii) ARG Petroleum on Survey No, 160, Haji camp, G.T. Road, Peshawar, 133 marlas and construction.
(iii) Erum Filling Station on Commercial Plot of land bearing No,15/1, sector 12/C, North Karachi.
(iv) Citizen Filling Station on Commercial Plot of land 97250 square or thereabout situated in Jam shoro, Tapoo Qasimabad.
(v) International Petrol Pump on commercial Plot of land Survey Nos. 137, 138 and Mensehra Road, Baluch Regiment Centre, Abbottabad.
(vi) Naz Ashrafi Filling Station, Hyderabad, Sindh on Commercial Plot bearing Survey No,18 situated at Shaki Pir Road, Hydarabad.
(vii) Sikandar Filling and CNG Station, Kotri District Jamshoro, Sindh on Commercial Plot of land bearing Serial No,87, Plot Nos.16, 17, 18, 19, 20 and 21.
(viii) Fuel Master Filling station on Commercial Plot of land Survey Nos.10335, 10332/1, Khasra Nos.10355, 103321.
(c) All plant, machinery and building lying at Machhike Terminal Station and elsewhere in Pakistan.
6. The charge, is registered vide Charge Registration Certificate dated September 4, 2007.
(ii) A mortgage by deposit of title deeds on the following prices and parcels of land:
(a) All that piece and parcel of land admeasuring 47 kanals, 6 marlas situated at Jhake, Tehsil and District Sheikhupura.
(b) All that piece and parcel of land admeasuring 25 kanals, 17 marlas situated at Jhake, Tehsil and District Sheikhupura.
(c) All that piece and parcel of land admeasuring 1 kanal, 18 marlas situated at Jhake, Tehsil and District Sheikhupura.
7. This aforesaid mortgage is duly registered with Company Registration Office, Securities and Exchange Commission of Pakistan vide Charge Registration Certificate dated September 4, 2007.
(iii) Personal Guarantees of defendants Nos.2 to 7 all dated August 6, 2007.
8. ' It is stated in the Plaint that the finance facility was fully availed and utilized by defendant No, 1.
9. However, the defendants in breach of the terms and conditions stated in the Finance Agreement and the security documents, which were duly executed by them, failed and for neglected to repay their outstanding obligations as and when the same fell due. Despite several reminders by the plaintiff from time to time including letter dated March 26, 2010 the defendants continued, to consistently renege on their commitments to pay the purchase price and other amounts payable to the C plaintiff.
10. ' It is further mentioned in the plaint that the defendants defaulted, and have continued to default on their obligations, and as a result of the same, a sum of Rs,277,574,446.03 is due from the defendants and remained outstanding in respect of the Finances, up to May 31, 2010 and all efforts on the part of the plaintiff to persuade the defendants to adjust their outstanding liabilities have borne no fruit. The defendants were under legal obligation to repay the said outstanding amount and liquidate their liability, but they had failed to act in terms of the Finance Agreements and security documents executed by them in favour of the plaintiff from time to time, despite various reminders issued D by the plaintiff.
11. ' Today C.M.A. No, 11536 of 2010 which is application for leave to defend has been dismissed for non- prosecution in view of order dated 27-5-2011 passed by this Court.
12. ' Since the Application for leave to defend has already 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 favour of the plaintiff. Office is directed to prepare decree accordingly.