UMAR ATA BANDIAL, J. - Learned counsel for the plaintiff has shown a letter dated 27.8.2007 at page 74 seeking issuance of Pay Order of Rs. 25.0 million in favour of the B.O.P. For swapping two finance facilities availed by the defendants, namely, CF-11 of Rs. 17.0 million and DF of Rs. 8.0 million.
Paragraph No. 8 of the plaint mentions Pay Order No. SP/G698412, dated 27.8.2007 in the amount of Rs. 25.0 million to have been disbursed to the BOP. The suit attaches NOCs by the BOP vacating its charge on mortgage security furnished by the defendants. These NOCs are dated 30.8.2007 and 31.8.2007 and 18.6.2007, available at pages 89, 90 and 91 of the suit file.
2. The PLA in paragraph 4 and ground (w) takes the plea that Rs. 25.0 million were not disbursed by the plaintiff bank in favour of BOP. The denial is based on the failure of the plaintiff bank to produce copies of the Pay Order on record whereby disbursement was made. It is further submitted that whereas ,the plaint alleges disbursement through one Pay Order, but the statement of account attached to the plaint reflects disbursement of the said amount through two Pay Orders.
3. The statement of account has been perused it reflects disbursement of Rs. 25.0 million through entries in statement of account of two facilities. There is an apparent inconsistency between those entries and a single pay order issued to the BOP. However, on the fact of disbursement two relevant and undisputed pieces of evidence on record are vacation of charge certificates by the BOP and the letter' dated 27.8.2007, written by the defendant company to the plaintiff bank. The vacation of charge certificates indicates satisfaction/payment of BOP facility and the defendants' letter requesting one pay order of Rs. 25.0 million corroborates the like instrument mentioned in para 8 of the plaint which was issued on the same day as requested. The fact that the statement of account sub-divides the payment into two entries indicates a book-keeping measure rather than fraud as alleged by the defendants This Court is not inclined to believe the plea denial taken by the defendants. Accordingly, the said amount of Rs.25.0 million is decreed in favour of the piaintiff bank.
4. The plaintiff is under a duty to demonstrate by reference to documents the sanction of finance and its disbursement. It is not essential for the plaintiff to prove-its case in every particular at the time of filing the suit. The impression entertained by the defendants that ambiguity or apparent inconsistency in the material on record may entitle the defendants to adopt a speculative plea is wrong. In the circumstances, plea of denial of disbursement taken, by the defendants before this Court knowing that Rs. 25.0 million was actually paid by the plaintiff bank to the BOP on 27.8.2007 tantamounts to taking a false plea and committing an abuse of process of the Court. Therefore, the defendants are jointly and severally subjected to costs in the amount of Rs. 1,00,000 which they shall deposit with the office within two weeks for distribution under further orders.
5. The Demand Finance-ll has been disputed by the defendants on the ground that there is no material showing the establishment of L/C. The letter dated 1.9.2007 at page 92 by the defendant company to the plaintiff bank seeking establishment of the L/C is referred by the learned counsel for the plaintiff. Paragraph 9 of the plaint mentions that Demand Finance-11 of Rs. 13.5 million was disbursed to the defendant company. However, no particulars of any L/C that was issued are given in the plaint. Learned counsel for the plaintiff submits that the documents of the L/C have been filed with the replication. These are attached at pages 11 to 22 of the replication. The defendants have not had an opportunity to read or rebut the said documents.
6. The question raised by the learned counsel for the defendants is that in a PLA a defendant only gets an opportunity to rebut claims made in the plaint and not those made in the replication.
Therefore, the replication cannot add new documents to surprise the defendants. There is weight in the submission made by the learned counsel for the defendants. The plaint is silent about particulars of the L/C. However, the plea regarding L/C is taken in the plaint and the documents filed with the replication merely elaborate and support that plea. As such the new documents do not surprise the defendant with a new plea but certainly it justify an opportunity to rebut being given to the defendants, Under the rule laid down in HM Says and Co., Karachi v, WazIrAIi Industries Ltd., Karachi and another (PLD 1969 SC 68) "anything that is not prohibited in procedure is permitted The Hon'ble Supreme Court in Imtiaz Ahmed v. Ghulam Ali (PLD 1963 SC 382) has held that procedure is meant to facilitate the resolution of a controversy rather than to pose as a hurdle or stumbling block in that process. In the light of foregoing law and the fact that there is no prohibition against filing of a rejoinder to the replication the defendants are allowed to rebut the contents of the replication. The Court shall consider the question of costs, if any, that are liable to be imposed on the plaintiff for having excluded documents regarding L/C from its plaint/after-decision of the fate of the evidence of establishment of L/C by the plaintiff.
7. The statement of account at page 15 of the plaint pertains to cash finance (Hypo). Apart from the first entry dated 27.8.2007, whereby Rs. 17.0 million are attributed as payment to BOP, there are several other entries in the said statement amounting to Rs. 8.0 million that are all transfer entries.
Neither the1 plaint nor the replication explain such entries for which evidence shall have to be recorded as held in United Dairies Farms v. UBL (2005 CLD 569). Accordingly, unconditional leave to defend is granted to the defendants in relation to the said amount of Rs. 8.0 million.