' JAWWAD_ S. KHAWAJA, J.---These are two Civil appeals, which have been filed by appellants Malik Muhammad Kazim, Malik Muhammad Qasim, Malik Muhammad Azam sons of Malik Anwar Hussain, Mst. Safia Ahmed, who is their sister has also been arrayed as a respondent but only in her capacity, as a legal representative of Malik Anwar Hussain appellant.
2. A suit was filed by the respondent Bank on 02.1.2002, praying for recovery of a sum of Rs, 33 million together with other amounts, set out in the prayer. It was the case of the respondent Al- Baraka Islamic Bank Ltd., as plaintiff, that the defendants i.e, the aforesaid three brothers and their father Malik Anwar Hussain alongwith the first two respondents namely, Spencer Distribution Limited and Sh. Asif Salam had obtained a loan, which had been guaranteed by the aforesaid brothers and their father. According to the Bank, the above-said three brothers namely, Malik Muhammad Kazim, Malik Muhammad Qasim, Malik Muhammad Azam and Malik Anwar Hussain, their father had deposited the original title deeds of a property bearing No, 55-A, Fleming Road Lahore with the Bank, as mortgage security and had also executed a memorandum of deposit of title deeds dated 20.6.1996 to confirm the deposit. A few days after the date of the memorandum of deposit, the four persons i.e, the above-said three brothers and their father executed and registered a mortgage deed in favour of the Bank on 14.7.1997 to secure the financial facility, which the bank had extended to Spencer Distribution Limited.
3. The defendants in the suit filed petitions for leave to appear and defend. Their main contention was that Sh. Asif Salam, one of the defendants, who was a Chartered Accountant for the brothers had been handed over the original title deeds for the purpose of tax consultation and advice and that Sh. Asif Salam had fraudulently deposited the documents with the Bank, after forging signatures. The learned Banking Court did not find the petitions for leave to appear and defend to be containing plausible grounds justifying grant of leave. As a consequence, the said applications were dismissed and the suit of the Respondent Bank was decreed, as prayed for. Thereafter two appeals were filed in the High Court, one by Malik Muhammad Azam and the other by the two brothers namely, Malik Muhammad Kazim,. Malik Muhammad Qasim, and their father Malik Anwar Hussain. The High Court, after taking into account the plea raised, partially allowed the appeals. As a result, the decree of the learned Banking Court was set aside and an interim decree for Rs, 20 million was passed in favour of the respondent Bank and against the aforesaid brothers and their father.
4. It is against the said appellate decree that these two appeals have been filed, one by Malik Muhammad Azam and the other by his other brothers namely, Malik Muhammad Kazim, Malik Muhammad Qasim and their father Malik Anwar Hussain. The Bank did not file an appeal against the modification of the decree of the learned Banking Court.
5. We have considered the various submissions advanced before us by both the sides. However, in view of the order, which we propose to pass, we are not elaborating and commenting on the merits of the specific pleas because the same will be considered by the Trial Court in view of our order. We are of the view that.In the light of the allegation that defendant No, 2 Sh. Asif Salam had fraudulently deposited the original title deeds with the Bank, the appellants may have some case for grant of leave to appear and defend even though conditional. It will of course be for the learned Banking Court to take into account the circumstances, such as delay between 1997 when the title deeds were deposited with the Bank allegedly by Sh. Asif Salam and the plea that the said original deeds were only handed over to the Tax Consultant and were not sought to be taken back for a period of five years, at least, until the filing of the suit by the respondent Bank.
6. Furthermore, the denial and allegations, which have been stated by Malik Muhammad Azam in his application for leave to appear and defend may also require examination. Likewise, the fact that as far as the Bank is concerned, the deposit of original title deeds itself may have constituted some act or omission on the part of the three brothers and their father, which according to the respondent Bank may have induced the Bank to advance the finance facility and that the appellants were contributories in such act and thus liable as defendants.
7. In view of the foregoing discussion, by allowing these appeals, we grant conditional leave to appear and defend, the suit to the appellants, who shall make a cash deposit of Rs, 20 million, with the Bank within a period of 30 days from today. Failing such deposit, these appeals shall stand dismissed.
High Court Judgment Set Aside Leave to Appeal to Defend .