'AZIZ-UR-REHMAN, J.---The present suit has been filed by Plaintiff Bank through its duly authorized and principal officers under section 9 of the Financial Institutions [Recovery of Finances] Ordinance, 2001 [In short F.I.O., 2001] for Recovery of Rs,58,282,490.85, inter alia, for Sale of the Pledged and Hypothecated Goods/Assets, Cost of Funds and Cost of the Suit with the following prayers:- a] a decree be passed in favour of the Plaintiff Bank and against the Defendant for payment of Rs, 58,282,490.85 [Rupees Fifty Eight Million Two Hundred Eighty Two Thousand Four Hundred Ninety and Paisas Eighty Five only] b] the Hypothecated Assets and Pledged Goods being inventory/stocks of rice located at Khawaja Godown situated at Plot No,10/1, Scheme No,28, Hawksbay Road, Karachi [factory premises] be ordered to be sold c] the decretal amount be ordered to be realized through execution of personal decrees against the Defendant d] the following two immovable properties of Defendant, may be attached under section 16 of the Ordinance and under Order XXXVIII, Rule 5 of the C.P.C. And sold out and proceeds be applied towards the satisfaction of decretal amount; i."All that piece and parcel of 1.67 Acre equivalent to 8082.8 sq. Yards, from Industrial Open Plot bearing Naclass No,162, out of admeasuring 5 Acres, or thereabout i.e, 24200 Keamari Town, District Karachi West, lying within the territorial jurisdiction of Mauripur Police Station." ii."All that 1/8th undivided share in piece and parcel of land bearing Sub Plot No,FL-4/A-1 of Plot No, FL-4, upon which a Flat Premises No,19 Located on Fourth Floor, measuring 268 square yards or thereabout, in the project known as "Hanging Gardens", situated in Block No,5, KDA Scheme No,5, Kehkashan, Clifton, Karachi." e] cost of funds as determined by State Bank of Pakistan and as envisaged under sections 3 and 17 of the Ordinance from the date of default i.e, 30.09.2009 till satisfaction of decreed amount be granted; f] cost of the suit also be awarded; g] any other better/consequential relief may kindly be granted.
2. The relevant facts in the background are as under:-
3. The Plaintiff is a Banking company duly licensed by the State Bank of Pakistan [In short SBP] to carry on Banking business in Pakistan, is a 'financial institution' as defined in section 2[a] of the Financial Institutions [Recovery of Finances] Ordinance, 2001, having its' Head Office and place of business at Business and Finance Centre, LI. Chundrigar Road, Karachi, while, Defendant is a 'sole proprietor' of Millat Rice Corporation and is doing business of 'export of rice', having availed from time to time, certain finance facilities from the Plaintiff Bank as such falls within the meaning of Customer in terms of section 2[c] of F.I.O., 2001.
4. The Plaintiff Bank, in order to have a cordial relationship with the Defendant besides, extending its' co-operation, always accepted Defendant's requests for granting to and availing of financial facilities by the Defendant during the entire period of transaction.
5. The Plaintiff Bank, indeed, after evaluating the collaterals offered as security by the Defendant through its' FACILITY OFFER LETTER' dated 07.11.2007, [Annexure 'P/2 to the Plaint], sanctioned various finance facilities in favour of the Defendant obviously in order to meet the Defendant's requirements of 'working capital', 'pre-shipment' and 'post shipment', as requested by the Defendant. The details of the finance facilities sanctioned by the Plaintiff Bank in favour of Defendant are as under:-
[a] Cash Finance Facility Rs,50,000,000/- [Rupees Fifty Million only]
[b] Finance Against Packing Credit [Sub-limit of Cash Finance Facility] Rs,35,000,000/- [Rupees Thirty Five Million only]
[c] Running Finance Facility Rs,15,000,000/- [Rupees Fifteen Million only]
[d] Finance Against Foreign Bills Rs,20,000,000/- [Rupees Twenty Million only]
[e] Foreign Bills Purchase [Discounting][Sub-limit of FAFB] Rs,20,000,000/- [Rupees Twenty Million only].
6. In pursuance of the aforesaid 'Facility Offer Letter', on 08.11.2007, the Plaintiff Bank through its' Main Branch Karachi, and the Defendant entered into an AGREEMENT FOR FINANCE ON MARK-UP BASIS dated 8th November, 2007 [Annexure P/4 Page 79]. The Plaintiff Bank under the aforesaid Finance Agreement agreed to disburse Is.65,000,000/- to the Defendant, called as 'Sale Price'. The Defendant, on the other hand under the afore-said 'Finance Agreement' of 8th November, 2007, was agreed to pay Rs,74,750,000/- as 'Purchase Price' to the Plaintiff Bank on or before 31.10.2008.
The Finance Agreement of 8th November, 2007, needless to say, is coupled with a 'Promissory Note' dated 08.11.2007 [Annexure P/5 - Pg 83] whereby, the 'Purchase Price', in the sum of Rs,74,750,000/- was promised to be paid by the Defendant on demand.
7. Apart from the above Finance Agreement, another FINANCE AGREEMENT dated 08.11.2007 [Annexure P/7 to the Plaint], was also signed and executed by the Defendant. Per this agreement, the 'Sale Price' and 'Purchase Price' mutually agreed between the parties is Rs,55,000,000/- and Rs,59,950,000/- respectively. This agreement is also coupled with a Promissory Note [Annexure P/8 - Pg 91] in the sum of Rs,59,950,000/-. [Fifty Nine Million, Nine Hundred Fifty Thousand only].
8. In order to secure, the said finance facility[ies] granted to and availed by the Defendant and as required under the FACILITY OFFER LETTER No KHI/MAIN/M M/117/07 of November 7, 2007, the Defendant besides, creating hypothecation on 'RICE STOCKS' and executing Letter of Guarantee also created Pledge upon its' STOCK OF RICE' in favour of the Plaintiff Bank and in such connection executed letters of Pledge and hypothecation . The description of 'Pledge Stocks' is as under:- "Pledge of inventory/stocks of rice located at Khawaja Godown situated at Plot No,10/1, scheme No,28, Hawksbay Road, Karachi [factory premises]. "
9. The Financial Facility[ies] so granted were fully availed and , utilized by the Defendant but the Defendant failed and/or avoided to adjust the same on or before 31.10.2008. Resultantly, a request for 11 'RENEWAL AND ENHANCEMENT' of the said finance facilities, was made by Defendant. The Plaintiff Bank, nonetheless, in order to IL facilitate and accommodate the Defendant, accepted the Defendant's request and 'SANCTIONED/ENHANCED/RENEWED', the finance! Facilities through its'
BANKING FACILITY OFFER LETTER' dated; 06.12.2008 [Annexure P/I4 to the Plaint], so that the Defendant becomes enable to meet its' [a] working capital requirement, [b] pre-shipment requirement and [c] post shipment requirement. On 18.12.2008, the Defendant returned the 'BANKING FACILITY OFFER LETTER' dated 06.12.2008, after duly signing and accepting the same. The details of the approved facilities are as under:-
[i] Cash Finance Facility Rs,50,000,000/- [Rupees Fifty Million only.
[ii] Finance Against Packing Credit Part In short FAPC-I and II [Sub-limit of Cash Finance Facility] Rs,50,000,000/- [Rupees Fifty Million only]
[iii] Finance Against Foreign Bill [SBP] Rs,20,000,000/- [Rupees Twenty Million only]
[iv] Finance Against Foreign Bills [Own] Rs,20,000,000/- [Rupees Twenty Million only] [Sub-limit of FAFB-SBP]
[v] Foreign Bills Purchase [Discrepant Sub-limit of FAFB-SBP] Rs,20,000,000/- [Rupees Twenty Million only]
[vi] Running Finance Facility Rs,15,000,000/- [Rupees Fifteen Million only]
10. In pursuance of the aforesaid 'BANKING FACILITY OFFER LETTER' of December 6, 2008, the Plaintiff Bank through its' Main Branch, Karachi and the Defendant, voluntarily entered into an AGREEMENT FOR FINANCE ON MARK-UP BASIS dated 18th December, 2008 [Annexure P/15 to the Plaint]. Under this Finance Agreement, the mutually agreed 'SALE PRICE' was fixed at Rs,50,000,000/- and the Defendant in turn promised and made himself liable to pay Rs,60,000,000/- as 'PURCHASE PRICE' on or before 31.10.2009, to the Plaintiff Bank. This Finance Agreement is also coupled with a 'Demand Promissory Note' of 18.12.2008 [Annexure P/16 to the Plaint] in the sum of Rs,60,000,000/- i.e, the 'PURCHASE PRICE'.
11. Likewise, in pursuance of said BANKING FACILITY OFFER LETTER of December 6, 2008 [Annexure P/14 to the Plaint], the Plaintiff Bank through its' main branch, Karachi and the Defendant entered into another 'AGREEMENT FOR FINANCE' dated 18.12.2008 [Annexure P/21 to the Plaint] on mark-up basis.
The 'SALE PRICE' under this FINANCE AGREEMENT agreed to be Rs,20,000,000/- and the 'Purchase Price' in the sum of Rs,24,000,000/- was agreed to be paid by the Defendant on or before 31.10.2009.
This Finance Agreement is also coupled with 'DEMAND PROMISSORY NOTE' of 18.12.2008 in the sum of Rs,24,000,000/- [Annexure P/22 to the Plaint].
12. In order to further secure the finance facilities, the Defendant besides, creating hypothecation upon its' Stocks of Rice' [finished and unfinished], created pledged upon the 'Stocks of Rice' as well and in this regard also duly signed and executed letters of 'Hypothecation' and letter of 'Pledge', both dated 18.12.2008 [Annexure P/24 and P/25 to the Plaint]. Moreover, the Defendant in his personal capacity also guaranteed the repayment of the amount by executing letter of Guarantee in the sum of Rs,102,000,000/- [Annexure P/26 to the plaint].
13. The Defendant though fully availed the finance facilities but did not adhere to his re-payment commitments. As such, not only failed to discharge its' contractual obligations but also failed to perform its' duty imposed under F.1.0., 2001, as well as inter alia under the 'FINANCE AGREEMENTS' and 'FACILITY OFFER LETTER[S]' etc. Having been duly signed and accepted by the Defendant in favour of the Plaintiff Bank. In view of this position, the Plaintiff Bank, on various occasions asked the Defendant to pay/liquidate the outstanding amounts owed to the Plaintiff Bank but Defendant, in his own wisdom, did not give any heed to the requests of the Plaintiff Bank, so made.
14. Moreover, the Defendant vide letter- of 22.01.2009, [Annexure 'P/33' to the Plaint], not only admitted the factum of pledge, but also promised, the payment of over-dues in the sum of Rs,2.7 million, Not only this, also undertook to deposit the outstanding mark-up shortly. Besides, the Defendant provided two cheques [a] CD0660510 of Rs,500,000/- dated 15.8.2009 and [11] CD 0580746 of Rs,7000/- dated 29.07.2009 [Annexure 'P/36' to the Plaint] to the Plaintiff Bank with a request to adjust the markup amount therefrom. The two cheques, however, on presentation stood dis-honoured due to 'Insufficient Balance' and /or because of funds 'Not arranged for' by the Defendant.
15. The facility-wise particulars as required in terms of F.I.O., 2001 of the amounts availed and repaid/adjusted against the amounts outstanding and the amounts payable by the Defendant on account of 'principal' and 'markup' are as follows:- {{TABLE}} A. CASH FINANCE OF RS.50,000,000/- [RUPEES FIFTY MILLION ONLY:- S# DESCRIPTION AMOUNT [Rs,] A. The amount of finance availed by the Defendant being total withdrawals. 49,900,000/- The amounts paid by the Defendant to the Plaintiff Bank in respect of Principal being total deposits.
Nil The amount paid by the Defendant to the Plaintiff Bank towards markup 5,093,008.33 The amount of principal relating to the finance payable by the Defendant to the Plaintiff Bank upto the 30.09.2009 49,900,000/- The amount of markup and other charges still payable by the Defendant to the Plaintiff Bank upto the 30.09.2009 8,045,491.20 Total amount payable by the Defendant upto the 30.09.2009 [D + El 57,945,491.20 B. FAFB-DP/DA Rs, 20,000,000/- [RUPEES TWENTY MILLION ONLY:- S# DESCRIPTION AMOUNT [Rs,] The amount of finance availed by the Defendant being total withdrawals. 2,700,000/- The amounts paid by the Defendants to the Plaintiff Bank in respect of Principal being total deposits. 2,577,579.75 The amount paid by the Defendant to the Plaintiff Bank towards markup 535,360.64 The amount of principal relating to the finance payable by the Defendant to the Plaintiff Bank upto the 30.09.2009 122,430.25 The amount of markup and other charges still payable by the Defendant to the Plaintiff Bank upto the 30.09.2009 214,569.40 Total amount payable by the Defendant upto the 30.09.2009 [D + E] 336,999.65 C. TOTAL OUTSTANDING AMOUNT PAYABLE BY THE DEFENDANT TO THE PLAINTIFF BANK:- S# DESCRIPTION AMOUNT [Rs,] CF: 57,945,491.20 FAFB - DP/DA 336,999.65 Total [A + B] 58,282,490.85 {{TABLE}}
16. The plaint in the present case was presented on 03.11.2009. The process as required under section 9[5] of the Financial Institutions [Recovery of Finances] Ordinance, 2001 [In short F.I.O., 2001], was issued to the Defendant. Upon service, the Defendant who is sole proprietor of 'Messrs Millat Rice Corporation, filed his Leave to Defend Application bearing C.M.A. No,11789/2009 thereby, seeking unconditional leave to defend the above suit on the grounds and as averred that the Defendant has raised substantial questions of facts and law in respect of which evidence per Defendant's version needs to be recorded.
17. In the Leave to Defend Application, it was not denied that the Defendant is a 'sole proprietor' of Millat Rice Corporation. Besides, availment of facilities and execution of various documents [annexed with plaint] were also not denied much-less specifically. On 13.05.2015, when the above case came-up before me, I heard Mr. Ali Raza Habb, learned counsel for the Defendant and Mr. Abid Naseem, learned counsel for the Plaintiff Bank and with their valuable assistance also gone through the available record.
18. Per Mr. Ali Raza Habb, the plaint has not been signed and/or verified by the competent persons of the Bank as the copy of RESOLUTION of the Board of Directors of the Bank, authorizing the person to execute the power of attorney[s] has not been annexed with the plaint though the copies of Power of Attorney[s], are available on record. In view of the this position, according to Mr. Ali Raza Habb, the suit as framed and filed is in-competent in law and as such, is liable to be dismissed with costs.
19. According to Mr. Ali Raza, the Defendant, no doubt, is a 'sole proprietor' of 'Millat Rice Corporation' and doing 'EXPORT BUSINESS OF RICE' but in fact has/had only availed two facilities i.e, 'CASH FINANCE' [In short CF] and 'FINANCE AGAINST FOREIGN BILLS' [In short FAFB], from the Plaintiff Bank.
The entire outstanding amounts, however, under the availed facilities have already been paid by the Defendant. No amount as alleged, is due or otherwise, payable by the Defendant to the Plaintiff Bank. Per learned counsel, on this score as well, the suit is liable to be dismissed.
20. Mr. Ali Raza Habb, next urged that the Plaintiff Bank with a view to defraud the Defendant, obtained the signatures of the Defendant, inter alia on blank 'printed forms' of finance agreement[s] etc. The 'Sale Prices' and 'Purchase prices' inter alia referred to in the Finance Agreement[s] and Promissory Note[s] are either in-correct or otherwise, exaggregates as such are not liable to be paid by the Defendant. Moreover, the various documents annexed with the Plaint, have not only been obtained in blank but have also been filled-up by the Bank with dates and figures of its' own choice and that too without obtaining consent of the Defendant. Besides, under the agreements of Finance Facilities, no any disbursement has been made as such all the Finance Agreements beside, without consideration are void and not enforceable under the law.
21. Like-wise, per Mr. Ali Raza, the amounts mentioned in the letters of hypothecation have never been availed by Defendant. Being so, the letters of hypothecations are also without consideration.
Besides, the letters of hypothecation are invalid as they do not disclose the details of the 'hypothecated ,goods' in Schedule 'A' thereto. According to Mr. Ali Raza, the letters of hypothecation, in fact, were obtained in blank. So also, the letters of pledge are too without consideration as no facilitypes1 there against was ever availed by the Defendant. The letters of pledge are also in-valid as no any amounts under the alleged facility[ies] have been granted to and/or availed by the Defendant. Besides, from the letters of pledge and/or letters of hypothecation, the details of the 'pledged goods'/'hypothecated goods' are missing which also render the letters of Pledge and Hypothecation quite doubtful. Be that as it may, per learned counsel all the letters of 'hypothecation' and 'pledge' annexed with plaint are invalid and not enforceable under the law. No hypothecation and/or pledge 'over the goods' of Defendant as claimed was ever legally created in favour of the Plaintiff Bank, Mr. Ali Raza further submitted in vehemence.
22. Not only the above, the LETTERS OF PERSONAL GUARANTEE of the sole proprietor of 'Millat Rice Corporation' are also invalid for want of consideration. The letters of guarantee [Annexure P/13 and P/26 to the Plaint] in fact, were obtained in blank and apparently have been filled-up later on and that too without consent of the Defendant. Mr. Ali Raza Habb, learned counsel for the Defendant, further contended that the letters of guarantee under the law are also invalid because the liability of the guarantor and the principal is one and same. The letters of guarantee thus beside without consideration are legally not enforceable under the law.
23. Mr. Ali Raza Habb, further urged that the signatures of Defendant appearing on all the 'documents annexed with plaint' have been obtained on 'blank printed forms' by the Plaintiff Bank.
Moreover, the TWO AGREEMENTS OF FINANCING [Annexure P/15 and 17 of the Plaint] are in respect of the same facility of Rs,50 Million. In the aforesaid finance agreements significantly the 'Sale Prices' are same, however, the 'Purchase Prices' ['Repayable Prices'] are different. Likewise, TWO PROMISSORY NOTES [Annexure 'P/I6' and 'P/18' to the Plaint] contained different amounts. The TWO FINANCE AGREEMENTS [Annexure 'P/19' and 'P/21' to the Plaint] obtained for another facility of Rs,20 Million also contain different 'Purchase Prices' [Repayable Prices]. Likewise is the position of PROMISSORY NOTES [Annexure P/18 and P/20]. From all the above, it depicts that all these documents have been obtained in blank and have been filled later-on but without consent of the Defendant. Per Mr. Ali Raza Habb, all the aforesaid documents are legally not enforceable or otherwise, binding upon the Defendant under the facts and circumstances of the case.
24. As far as the issue of Cheques is concerned, per Mr. Ali Raza Habb, the Cheques referred to in Plaint, no doubt, were issued by the Defendant but perhaps due to mis-understanding. The cheques, as urged by Mr. Ali Raza Habb, were not intentionally issued for dishonor as alleged by the Plaintiff Bank. The 'subject cheques' were subsequently replaced by other two cheques for the same amount which as alleged, have already been encashed. The Defendant, per learned counsel, time and again requested the Plaintiff Bank for the return of dis-honoured cheques but the Plaintiff in its' own wisdom and perhaps with a mala fide intention and bad faith did not return the above- mentioned cheques. According to Mr. Ali Raza Habb, learned counsel for the Defendant, no any offence as alleged by the Plaintiff was ever committed by the Defendant muchless which may fall within the scope of section 20 of F.I.O., 2001 [Ordinance NO.XLVI of 2001].
25. According to Mr. Ali Raza Habb, no order for attachment vis-a-vis immovable properties not being mortgaged with the Plaintiff Bank can be passed and/or otherwise, sold much-less at this stage of proceedings. True copies of 'sale deed' and 'conveyance deed', attached with the plaint [Annexure P/37 and P/38], have never been deposited by the Defendant with the Plaintiff. Per Mr. Ali Raza Habb from the perusal of the copies thereof, it appears, the same have been obtained from the 'Registration Department of Government of Sindh'. The plaintiff, nonetheless, has no vested right over and regarding these two immovable properties to attach and/or sale the same much-less at this stage of the proceedings.
26. Mr. Ali Raza, next contended that almost all the amounts due against FINANCE AGAINST FOREIGN BILLS (In short FAFBI, have already been paid/adjusted. The amounts of 'markup' and 'other charges' as claimed by the Plaintiff Bank, are absolutely 'exaggerated' and 'unjustified' thus the Defendant is not liable to pay the same. Similarly, the claim of the Plaintiff Bank regarding 'CASH FINANCING' [In short CF] facility is also false and baseless. No any amount, as claimed by the Plaintiff, is payable by the Defendant to the Plaintiff Bank. Per Mr. Ali Raza Habb, learned counsel for the Defendant, the total payable amount ['Purchase Price'], in terms of 'FINANCE AGREEMENT' [Annexure P/15 to the Plaint], is Rs,60,000,000/- and out of this amount the Defendant has already paid Rs,5,093,088.33.
No excess amount of 'markup can be claimed and/or charged by the Plaintiff Bank over and above the 'Purchase Price' of Rs,60,000,000/- [Rupees Sixty Million only]. The particulars/break-up of the amounts, availed, repaid/adjusted against the 'principal' and/or 'mark-up' and the amount outstanding and payable as required in terms of section 10[4] of F.I.O., 2001 submitted by Defendant read as follows:- A. The amount of finance availed by the Defendant: a] Cash Finance Rs,49,900,000.00 ii] The amount of finance and other amounts relating to finance payable by the Defendant to the financial institution upto the date of institution of suit. [i.e, 03.11.2009]. a] Cash Finance Rs,53,900,000.00 iii] The amounts paid by the Defendant to the financial institution as per statement of account. a] Cash Finance Rs,5,093,008.33 Value of stock of Rice in Rs,40,000,000.00 possession of Plaintiff iv] The amounts which the Defendant disputes as payable are as follows:- a] Cash Finance Rs,8,045,491.20 B. The amount of finance availed by the Defendant.
A] FAFB Rs,2,700,000.00 ii] The amount of finance and other amounts relating to finance payable by the Defendant to the financial institution upto the date of institution of suit [i.e, 03.11.2009]. a] FAFB Rs,2,700,000.00 iii] The amounts paid by the Defendant to the financial institution as per statement of account. a] FAFB Rs,2,577,569.75 'Payable amount Rs, 336,999.85
27. In view of the above submissions, Mr. Ali Raza Habb, learned counsel for the Defendant vehemently submitted that the Defendant is entitled for 'LEAVE-TO-DEFEND' the above suit unconditionally, as the Defendant, according to Mr. Ali Raza, has succeeded in raising substantial questions of law and facts which, no doubt, entitles the Defendant for un-conditional grant of 'LEAVE-TO-DEFEND' the suit. Moreover, as urged by Mr. All Raza, under Article 10-A of the Constitution of Islamic Republic of Pakistan, 1973, 'fair trial' and 'due process' is a fundamental right of each and every litigant, thus on this score as well, the Defendant deserves to be granted un-conditional 'LEAVE TO DEFEND' the suit.
28. In contra, Mr. Abid Naseem, learned counsel for the Plaintiff Bank forcefully submitted that the Defendant in his 'LEAVE-TODEFEND APPLICATION' bearing C.M.A. No,11789 of 2009, has not only admitted the availment of 'Cash Finance Facility' [In short CF] in the sum of Rs,49,900,000/- but also the 'FINANCE AGAINST FOREIGN BILLS' [In short FAFB], in the sum of Rs,2,700,000/-. Moreover, in the 'LEAVE-TO-DEFEND APPLICATION', the Defendant has also admitted the execution of Finance Agreement[s], Promissory Notes, Letter of Continuities, Letters of Pledge, Letters of Hypothecation, Understandings, Declarations, Forms 'A' and Letters of Guarantees etc. In favour of the Plaintiff Bank.
Per Mr. Abid Naseem, learned counsel for the Plaintiff, all the documents on the record, no doubt, are duly filled documents which, of course, belie the Defendant in its' version that any document, as alleged, was obtained/procured in blank by the Plaintiff Bank from the Defendant. Prior to filing of 'LEAVE-TO-DEFEND APPLICATION', the Defendant, per Mr. Abid Naseem, has never challenged and/or otherwise, alleged that any document was obtained in blank and/or has been filled later-on.
29. According to Mr. Abid Naseem, learned counsel for the Plaintiff Bank, the assertions made and allegations leveled by the Defendant, are not only baseless but also self-conflicting and contradictory. Mr. Abid Naseem, further urged that in terms of section 9[1] of F.I.O., 2001, the filing of 'Board Resolution' with the copies of Power of Attorney[s] of the Bank's Officers is not a requirement of law particularly, when the Power of Attorney[s] are available on record and have not been challenged by the Defendant. The suit, as framed and filed, per Mr. Abid Naseem, is well competent in-law and deserves to be decreed as prayed. Even otherwise, per Mr. Abid Naseem, this is a matter between the principal and agent[s], and the Defendant being a defaulter is no body to question and/or raise such frivolous objections about the filing of the suit with a view to avoid and/or forestall the payment of the amounts owed to the Plaintiff Bank by the Defendant.
30. Per Mr. Abid Naseem, the assertions and denials so made/leveled, of course, are afterthought and false. Even otherwise, it loses its' importance if any, in view of 'ADMISSION OF LIABILITY' by the Defendant as per para 33 of the 'LEAVE-TO-DEFEND APPLICATION' bearing C.M.A. No,11789 of 2009. Mr. Abid, further urged that per Schedule 'A' to 'LETTERS OF PLEDGE' and HYPOTHECATION, the 'pledged goods', no doubt, is the 'STOCK OF RICE' and nothing else. According to Mr. Abid Naseem, the FBP FACILITY, of course, was availed by Defendant but later on, it was adjusted. As far as, the R.F.
FACILITY is concerned, the same has not been availed by the Defendant. Annexures P/19 and P/21 to the Plaint are documents having been duly executed by the Defendant in connection with two FACILITIES OF FAFB. Per learned counsel, Annexures 'P/15' to 'P/23' to the plaint are not the documents as alleged by Defendant for the same facility. On the contrary, these FINANCE AGREEMENTS were signed and executed for:- A] Cash Finance Facility of Rs,50,000,000/- B] Finance Against Cash Finance Facility Part-I and Part-II [Sub-limit of Cash Finance Facility] Rs,50,000,000/-.
31. Moreover, from the CERTIFIED STATEMENT OF ACCOUNTS [Annexure 'P/39' to 'P/42' to the Plaint], it also depicts that the Defendant have not only availed the subject finance facilities from the Plaintiff Bank but also failed and/or avoided to liquidate the same. On account of default committed by the Defendant in its' repayment obligations, the instant suit has been filed. Learned counsel for the Plaintiff Bank also contended in vehemence that the 'Pledge Stock' to the knowledge of Defendant, has already been sold out during the Court's proceedings and the 'Sale Proceeds' so realized, has already been adjusted against the outstanding liabilities of Defendant. Even, the Defendant himself in respect of some of the 'stocks of pledged rice' was the highest bidder and in such capacity his bid was also confirmed.
32. According to Mr. Abid Naseem, the two immovable properties referred to in 'para 39' of the plaint, though are not mortgaged with the Plaintiff Bank, however, the Bank with a view to avoid any sort of obstruction or delay at the execution stage, the attachment of the said immovable properties has been sought. No doubt, the same, per Mr. Abid, can be attached so that the interest of the Plaintiff Bank is fully safeguarded. Lastly, Mr. Abid Naseem, forcefully submitted that the Defendant, has badly failed to raise any substantial questions of facts and law. In view of this position as well, the Defendant is not entitled for grant of any 'LEAVE-TO-DEFEND' the suit. The 'LEAVE-TODEFEND APPLICATION' [C.M.A. No,11789 of 2009], as such, is liable to be rejected and consequently, the Plaintiff's suit be decreed as prayed.
33. Heard.
34. As far as the preliminary objection to the effect that 'the suit has not been filed by competent person' is concerned, at the very outset I would like to refer to subsection (1) of section 9 of F.I.O., 2001, which reads as follows:- "9. Procedure of Banking Courts.---(1) Where a customer or a financial institution commits a default in fulfilment of any obligation with regard to any finance, the financial institution or, as the case may be, the customer, may institute a suit in the Banking Court by presenting a plaint which shall be verified on oath, in the case of a financial institution by the Branch Manager or such other officer of the financial institution as may be duly authorised in this behalf by power of attorney or otherwise." [Underlining is mine].
34(sic.) From perusal of above provision of law it is quite evident that the plaint in case of Financial Institution shall be verified on oath by the Branch Manager or such other officer of the Financial Institution as may be duly authorized by Power of Attorney or 'otherwise'. The word 'otherwise' referred to in subsection (1) of section 9 of F.I.O., 2001, it is significant to observe, needs not to be given restrictive meanings. The word used' 'otherwise' in my view also embraces within its' ambit apart from the Power-of-Attorney[s] any other documents including Special Power of Attorney, authority letter etc. Whereby, a person who verifies the plaint on oath could be authorized. The word 'otherwise' in the case of Sardar Abdul Ghafoor Khan and 3 others v. The Federal Land Commission, Islamabad [PLD 1979 Lahore 375] has been dilated upon and explained in the following words:- "3. ... The word "otherwise" according to its dictionary meaning connotes "in any other way" or "any other ways". Its plain ordinary meaning has therefore the effect of enlarging the category of the transactions described by the preceding word or phrase. It is a word of the widest amplitude. "
[Underlining is mine].
35. Moreover, it is also significant to note that F.1.0., 2001 [Ordinance XLVI of 2001], is a special law and over-rides all other laws as per section 4 of F.I.O., 2001. For ready and convenience purposes section 4 of F.1.0., 2001 is reproduced as under:- "4. Ordinance to override other laws.---The provisions of this Ordinance shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force. "
36. Apart from the above, para 2 of the Plaint and 'common clause 9' of the Power of Attorney[s] annexed with the plaint are also reproduced as follows:- a. Plaint "2. That this suit is being instituted through Mr. Muhammad Sultan Khan son of Mr. Muhammad Siddique Khan, and Mr. Muhammad Siddique son of Mr. Muhammad Shafiq Khan, who are principal officer of the Plaintiff Bank and are competent to institute this suit and to do all acts necessary or incidental for proper prosecution of the case vide power of attorney(s) in their favour and well conversant with the facts of the case, and has signed and verified this plaint. " b. Common Clause 9 of Power of Attorney ".
"9. To commence, prosecute, continue and defend all action suits or legal proceedings whether civil, criminal or revenue including proceedings to procure or establish the bankruptcy or insolvency of any person or firm or liquidation or winding up of any company; to compromise or refer to arbitration any claims or disputes either in such suits or proceedings or otherwise; to appoint Solicitors, Advocates, pleaders, Vakils and other legal agents; to make, sign, verify, execute plaints, petitions, written statements tabular statements, vakalatnamas, powers of attorney or any other papers expedient or necessary in the opinion of the Attorney to be made, signed, execute verified, presented or filed. "
37. It is also worthy to note, under sections 196 and 197 of the Contract Act [Act No,IX of 1872] where acts are done by one person on behalf of another, but without his knowledge or authority, he may elect to ratify or to disown such acts, if ratifies then, the same effects will follow as if all that acts had been performed by his authority. Such ratification may be expressed or may be implied in the conduct of the person on whose behalf the acts have been done. In view of this legal position, even a suit if, filed through a person having no authority then too the principal can ratify the defect, if any later-on. Being so on this ground alone, the suing party cannot be knocked out summarily.
38. As far as the 'Pledged goods' are concerned, indeed, certain quantity of 'Basmati Rice' was pledged with the Plaintiff Bank to secure certain finance facilities granted to and availed by Defendant from time to time. Per Defendant's stand, the entire stock of pledged goods was of 'Basmati Rice'. Contrary to this, during the proceedings and after passing order for the sale of the 'pledged stocks', however, it has come on record/transpired, that only a 'portion' of the 'pledged stock' was of 'BASMATI RICE' whereas, the remaining portion as reveals from the record was comprised of Rice i.e, `IRRI-6' or 'IRRI-9'. The portion being comprised 'Basmati Rice' was, nonetheless, 'disposed of' during the Court's proceedings and the sale proceeds, realized therefrom, were by consent released to the Plaintiff Bank, however, subject to all just deductions permissible under law. The amount of 'sale proceeds', per record, has also been adjusted against Defendant's claim of outstanding amounts.
39, With an object to resolve the controversy between the parties regarding quality of the 'REMAINING PORTION OF RICE', it was agreed between the parties and 'auction purchaser' that the REMAINING PORTION OF STOCK be examined by M/s K.G. Traders [Pvt.] Ltd. The fee for such examination was agreed to be paid by the Plaintiff Bank to M/s K.G. Traders [Pvt.] Ltd. For the inspection, however, it was agreed as adjustable and payable by the Defendant. Moreover, it was also agreed that if, per report of M/s K.G. Traders [Pvt.] Ltd., that the 'STOCK OF RICE' was found as Basmati variety, contrary to the stand taken by auction purchaser, then in such eventuality, the same shall be lifted by the auction purchaser at the rate at which, the earlier, portion of 'BASMATI RICE' was lifted by the auction purchaser. In case of 'ADVERSE REPORT' of M/s K.G. Traders [Pvt.] Ltd.
[i.e, if, the REMAINING PORTION OF RICE was found of some other variety],, then, in such eventuality, the remaining portion of rice was ordered to be put to auction afresh, however, the auction purchaser shall be at liberty to participate in the auction proceedings. The relevant portion of order dated 1st June, 2011 is reproduced as under:- "2. It appears that certain quantity of Basmati rice was pledged by the Defendant with the Plaintiff Bank on account of certain loan facility and the case of the Defendant is that entire stock pledged was of the Basmati variety. After the institution of this suit an order was made for the sale of the pledged stock and it subsequently transpired, according to the learned counsel for the Plaintiff Bank, that only a portion of the pledged stock comprised of Basmati Rice whereas the remaining portion comprised of other varieties of rice. Jr appears that the portion comprising of Basmati Rice has been disposed of and the sale proceeds, subject to all just deductions as permissible under law, have been received by the Plaintiff Bank which will be adjusted against its claim outstanding against the Defendant.
'The controversy now relates to the remaining portion of the rice, which as noted above according to the Defendant was of the Basmati variety, but according to the learned counsel for the Plaintiff is some other variety. Learned counsel for the auction purchaser who lifted the Basmati portion of the pledged stock states that the purchaser has made an offer in respect of the remaining portion, but since it appears that the portion is not Basmati variety the offer is for a lesser price. Learned counsel for the Defendant states that his instructions are that the remaining portion is in fact also of Basmati variety.
'In order to resolve the controversy the learned counsel for the Plaintiff Bank as also for the Defendant and also learned counsel for auction purchaser are agreed that the remaining portion of the stock may be examined by M/s. K. G. Traders (Pvt.) Ltd., and the in the first instance the fees for the inspection shall be paid by the Plaintiff Bank which shall be adjustable against the claim made by the Plaintiff against the Defendant. Once the report of M/s. K. G. Traders has been received, if the report is that the rice is of Basmati variety the same may be lifted by the auction purchaser at the same price for which he lifted the earlier portion. On the other hand if the report of the K. G. Traders is that the remaining portion is some other variety, let the remaining portion be put to auction afresh and the auaion purchaser shall be entitled to participate in such auction. For this purpose let the Nazir submit a reference to the Court after the report of K. G. Traders has been received by him. [Underlining is mine].
'For purpose of giving proper effect to this order let the representative of the Plaintiff Bank as also of the Defendant and of the auction purchaser appear at the office of the Nazir on 7.6.2011 at 11.00 A.M.
On which date the Nazir shall issue notice to the K. G. Traders and proceed in the matter as directed above, and the Nazir is hereby authorized to do all such ministerial acts as may be required to give effect to this order. This exercise shall be completed within two weeks from 7.
6.2011 . "
40. According to the Survey Report submitted by M/s K. G. Traders, the remaining portion of the 'pledged stock' though was of rice but except some small quantity, it was not 'variety of Basmati '.
Besides, per report the 'auction purchaser' was not interested/ready to lift the small portion of remaining 'Basmati Rice'. Under circumstances, the remaining portion of Rice was ordered to be 'put to auction' in terms of order dated 01.06.2011. Nevertheless, the earlier auction purchaser was permitted to take part in the auction of Rice of the remaining un-sold stocks. The amount of Rs,9.5 million earlier deposited with the Nazir was ordered to be released to the auction purchaser, however, subject to proper 'verification' and confirmation. Order dated 20.07.2011 reads as follows:- "Nazir submits his report dated 16.7.2011 today annexed to which is the survey report complied by MIS. K. G. Traders. From this report it appears that substantially the entire quantity of the remaining portion of the rice is not of Basmati variety, although a small portion is of that variety. However Auction Purchaser who is in attendance along with learned counsel appearing on his behalf states that he is not interested to lift such a small portion.
'In the order dated 1.6.2011, it was directed that if remaining portion was of some variety other than Basmati than it could be - auctioned afresh and Auction Purchaser would participate in such auction. In the circumstances since remaining portion is almost entirely of some other variety of rice let it be put to auction again in terms of order dated 1.6.2011 and the Auction Purchaser may participate in such auction. Learned counsel for the Auction Purchaser states that an amount of Rs, 9.5 million was earlier deposited with the Nazir in connection with the remaining portion which in the circumstances may be ordered to be released. Nazir who is in attendance confirms this position. Nazir is directed to release the amount subject to proper verification and confirmation. "
[Underlining is mine].
41. From perusal of Nazir's report dated 10.10.2011, it appears,- that 'bidding process' was undertaken in compliance with order dated 04.10.2011, wherein one Sher Muhammad emerged aa the highest bidder at Rs,36 per Kg. The other two bidders though participated in the bidding process, however, they could not match the highest bid of Sher Muhammad as such, they withdrawn themselves from the process of bidding. Consequently, the 'highest bid' received from one Sher Muhammad at the rate of Rs,36/- per Kg for the available stocks of 'pledged rice' was confirmed. Order dated 13.10.2011 is reads as under:- "Nazir has filed his report dated 10.10.2011, whereby bidding was undertaken in terms of the order dated 04.10.2011, and it appears that Mr. Sher Muhammad has emerged as the highest bidder at Rs, 36 per Kg. Learned counsel for Mr. Muhammad Asif Younas, the other bidder confirms that he could not match the bid and seeks to withdraw from the matter.
'Learned counsel for Plaintiff-Bank states that the Bank has also no objection to the highest bid received.
' In view of above position, the bid received by Mr. Sher Muhammad at Rs, 36/- per Kg for the stock of rice as available is confirmed and the matter may be finalized in this regard on normal terms and conditions and as per rules. Learned counsel for Mr. Muhammad Asif Younas, states that the latter had submitted pay order earlier same may be returned subject to proper verification and confirmation. " [Underlining is mine].
42. Upon disposal of the 'pledged stocks' the Plaintiff Bank filed an application under section 151, C.P,C. Bearing C.M.A. No,12259/2011 for release of the amounts deposited with the Nazir of this court as being sale proceeds of the 'Pledged Stock of Rice'. The aforesaid application was granted with the consent of Defendant's counsel the Nazir of this Court was consequently, directed to release amount lying with him as being sale proceeds of the 'pledged rice', to the Plaintiff Bank in accordance with law. The relevant portion of Order dated 16.11.2011 reads as follows:- "1. This is an application (C.M.A. No,12259 of 2011) under section 151, C.P.C. For withdrawal of amount made by the Plaintiff-Bank for release of amount which has been deposited with the Nazir of this Court being the sale proceeds of the pledged rice. Defendant present in Court has no objection to the grant of this application. By consent, this application is allowed Nazir is directed to release the amount lying with him on account of sale proceeds of the pledged rice to the Plaintiff-Bank in accordance with law. [Underlining is mine].
43. From the record it also transpires that the auction taken place in respect of some other portion of 'pledged rice' was carried out in compliance with order dated 20.05.2014. The 'reserved price' was fixed at Rs,80,000/- [Eighty Thousand only] and the HIGHEST BID WAS RECEIVED FROM THE DEFENDANT ITSELF, to which Plaintiff Bank raised their no objection in view of the fact that due to rain season if, delay is caused, it might affect the 'quality of the rice' and thereafter, it may not fetch more price in future. Under such circumstances, the bid of the Defendant was 'confirmed' in the sum of Rs,1,50,000/-. Relevant portion of order dated 09.09.2014 reads as follows:- "Both the learned counsel appearing for the Plaintiff and Defendant say that auction has taken place in respect of Rice in compliance of Order dated 20.05.2014. The reserved price was Rs, 80,0001= and the highest bid is received from Defendant itself. Plaintiff has no objection if that bid is confirmed. Both the learned counsel say that due to rain season if delay is caused it might affect the quality of the Rice and it may not fetch more price in future.
'In such situation Nazir 's report is accepted and offer made by Defendant in the sum of Rs,1,50,000/= is confirmed. Nazir 's report is disposed of " [Underlining is mine].
44. Like-wise, by another application under section 151, C.P.C. [C.M.A. No,4407/2015], the Plaintiff Bank also sought withdrawal of the remaining amount in the sum of Rs,150,000/1Rupees One Lac Fifty Thousand only] having already been deposited by the Defendant ITSELF in his capacity as Auction Purchaser in respect of the remaining 'pledged stock' of rice, with the Nazir of this Court.
The aforesaid application was also granted on 08.04.2015. The relevant part of order dated 08.04.2015 reads as under:- "2. By means of this application under section 151, C.P.C., (C.M.A. No,4407/2015) the Plaintiff Bank is seeking withdrawal of the amount in the sum of Rs,1,50,000/- (Rupees One Lac Fifty Thousand only), already deposited by the Defendant with the Nazir of this Court towards purchase of the pledged rice. Despite service, no counter affidavit in opposition thereto has been filed by the Defendant. Under circumstances, the application is granted and consequently Nazir of this Court is directed to release the amount of Rs, I ,50,000/- (Rupees One Lac Fifty Thousand only) to the Plaintiff Bank. Upon receiving the amount, the same be appropriated towards the outstanding liability of the Defendant. " [Underlining is mine].
45. Pursuant to release of the entire sale proceeds of the 'pledged stock' of rice the Plaintiff Bank, with a view to establish the 'adjustment of sale proceeds' against the Defendant's liability also filed a 'break-up of liability' on 11.05.2015 which reads as follows:- {{TABLE}} A. CASH FINANCE OF RS. 50,000,000/- (FIFTY MILLION ONLY1.
S# DESCRIPTION AMOUNT [Rs,] The amount of finance availed by the Defendant being total withdrawals 49,900,000/- The amounts paid by the Defendant to the Plaintiff Bank in respect of Principal being total deposits.
Nil The amount paid by the Defendant to the Plaintiff Bank towards markup 5,093,008.33 The amount of principal relating to the finance payable by the Defendant to the Plaintiff Bank upto 30.09.2009 49,900,000/- F(sic.) The amount of markup and other charges still payable by the Defendant towards the plaintiff Bank upto the 30.09.2009 8,045,491.20 Total amount payable by the Defendant upto the 30.09.2009 [D + El 57,945,491.20 B. FAFB-DP/DA Rs, 20,000,000/- [RUPEES TWENTY MILLION ONLY1 S# DESCRIPTION AMOUNT [Rs,] The amount of finance availed by the Defendant being total withdrawals 2,700,000/- The amounts paid by the Defendant to the Plaintiff Bank in respect of Principal being total deposits.
2,577,579.75 C. The amount paid by the Defendant to the Plaintiff Bank towards markup 535,360.64 D The amount of principal relating to the finance payable by the Defendant to the Plaintiff Bank upto 30.09.2009 122,430.25 E The amount of markup and other charges still payable by the Defendant towards the plaintiff Bank upto the 30.09.2009 214,569.40 Total amount payable by the Defendant No,1 upto the 30.09.2009 [D + E] 336,999.65 C. TOTAL OUTSTANDING AMOUNT PAYABLE BY THE DEFENDANT.
S# DESCRIPTION AMOUNT [Rs,] CF: 57,945,491.20 FAFB/DP/DA 336,999.65 Total 58,282,490.85 LESS SALE PROCEED OF PLEDGED STOCK THROUGH COURT PROCEEDINGS 21,273,905.85 Total yet to be paid by Client [Defendant] [Principal [+] Mark-up] 37,008,585/- {{TABLE}}
46. From all the above, it is manifestly clear that the 'pledged stocks' of Rice, besides, 'Basmati Rice' was comprising 'IRRI-6', 'IRRI-9' and 'Basmati-2000' etc. As is evident from the report submitted by M/s K.G. Traders on July, 12, 2011. Moreover, all the 'pledged stock' was 'disposed of with the consent of Defendant and thereafter under the supervision of Nazir of this Court through proper Court's proceedings the same was disposed of. In view of this position the allegations leveled by the Defendant are not only false but also without any foundation. Even, the Defendant regarding some of pledged stocks was the highest bidder and in such capacity his bid was confirmed. For all the above, the allegations and assertions of any mis-happening regarding quality and quantity of 'pledged stock' of rice leveled by the Defendant merit no consideration thus repelled.
47. In so far as the contention of Mr. Ali Raza Habb that all FINANCE AGREEMENTS COUPLED WITH PROMISSORY NOTES, PLEDGED/HYPOTHECATED LETTERS, ETC., were obtained 'in blank' cannot be accepted particularly, when the documents themselves speak otherwise. It is quite significant to note, that the Defendant has never denied his signatures over any of the documents annexed with plaint or otherwise, any sort of protest was ever recorded which means that before signing the documents they were duly filled with dates and figures otherwise, the Defendant would have not signed all the aforesaid documents. In the case of Muhammad Arshad and another v. Citibank N.A., Lahore [2006 SCMR 1347] the Hon'ble Supreme Court of Pakistan while, dilating upon somewhat similar situation has held as follows:- 'We are not at all impressed by the contention raised on behalf of the petitioners that the genuineness and authenticity of the agreement, dated 26-6-1999 is not above board as the relevant columns were left blank and filled in subsequently by the Bank. For the sake of argument even if it is admitted then why the agreement dated 26-6-1999 was acted upon and pursuant whereof ten installments had been paid and the outstanding liability was reduced from Rs, 21,05,280 (mark-up price) to Rs,17,95,
176. In fact the above installments were made as per repayment schedule which was inseparable part of the agreement dated 26-6-1999. It must not be lost sight of that the main object to get the renewed agreement was restructuring of the finance facility and not liquidation of the liability. We have no hesitation in our mind to hold that agreement dated 26-6-1999 was authentic, genuine and executed between the parties and acted upon. A careful perusal of the agreement dated 26-6-1999 would reveal that mark-up was charged in accordance with the terms and conditions and stipulated therein. It is to be noted that in the agreement dated 26-6-1999 it has been stipulated in a categoric manner that the petitioners had also entered into mark - up agreement which was executed on 21-6-1995 and thus, it stood admitted by the petitioners. It would not be out of place to mention here that an amount of Rs, 21,05,280 was mentioned as mark-up in the last agreement. It would be too late in the day to challenge its authenticity on the pretext of certain blank columns. The question which arises here at this juncture would be that as to why certain columns were left blank and if it was so done why the incomplete agreement was signed by the petitioners? No answer could be given by the learned Advocate Supreme Court on behalf of the petitioners. In our considered view the plea of "blank columns" would hardly renders any assistance to the case of petitioners.
'In view of the provisions as contained in section 20 read with section 118 of the Negotiable Instruments Act, 1881 no benefit could be given to the petitioner on the ground that the agreement was not completely filled in when executed as it would have no substantial bearing on the validity of the agreement. In this regard reference can be made to case Muhammad Sarfraz Khan Rana v.
Government of the Punjab PLD 1990 Lah.
88. It is well-settled by now that "Negotiable Instruments Act provides that where one person signs and delivers to another paper stamped in accordance with law, either wholly blank or having written thereon incomplete negotiable instrument, in order that it may be made, or completed into negotiable instrument, he thereby gives prima facie authority to person who C receives that paper to make or complete it as case may be into negotiable instrument for any amount.
Furthermore, section 118 of Negotiable Instruments Act, provides that presumptions are attached to negotiable instruments, which, inter alia includes that negotiable instrument was made or drawn for consideration and that every instrument bearing date was made or drawn on such date. Held: Documents were given blank as canvassed by appellants even then appellants are estopped to challenge legality, validity and genuineness of said documents. "
48. Needless to say that the Defendant vide letter No, MRC/KASB/001/09 dated 22nd January, 2009 contrary to his contention now being raised has also admitted his outstanding liability. Being relevant, the aforesaid letter regarding payment of markup and over-dues principal amount as undertaken thereunder by the Defendant is reproduced as under:- "MILLAT RICE CORPORATION MILLERS SUPPLIER AND EXPORTERS MEMBER: 102, GRAIN CENTRE, DANDIA BAZAR RICE EXPORTERS ASSOCIATION OF PAKISTAN OPPO: CITY COURT, KARACHI-PAKISTAN KARACHI CHAMBER OF COMMERCE AND TEL: 0092-21-2774563, 2733497 INDUSTRY FAX: 09921-21-2775660, 5206444 KARACHI WHOLESALE GROCERS ASSOCIATION E-mail: millatriceacyber net.Pk URL: www.Millatrit-e.Com.Pk Ref: MRC/KASB/001/09 Date: 22 JAN 2009 To The Manager KASB Bank Limited Main Branch, 1.1. Ch. Road, Karachi.
'Kind Attn: Mr. Noman Ansari 'Re: DP Sheet of Millat Rice Corporation Dear Sir 'Ref. To your email received yesterday with DP Sheet with subject noted above, we would like to inform you that our Rice Stock pledge with your bank is Super Kernel Basmati Rice not Only Super Basmati Rice. The Current Rate of Super Kernel Basmati Rice is Rs, 8600/- to 8800/- Per 100 kgs.
(Kindly check Commodity Rates in Business Recover Dated: 19/01/09.).
'So kindly maintain the rates in Stock Report @ Rs, 8600/- Per 100 Kgs and make changes in Description of Goods column in stock Report to Super Kernel Basmati Rice instead of only Super Basmati Rice otherwise we are unable to place extra stock of Rice to fulfill the DP requirements of Bank because we are already facing huge loses in pledged stocks due to international down fall in all business sectors.
'Regarding the markup payment of previous quarter we will deposit the markup amount before end of current quarter. In the meantime kindly also convert our CF facility to FAPC-1 Per-Shipment enable us to reduce our markup cost because we have also facing problem in payment of huge markup due to high markup rate. (FAPC-1 Pre-Shipment Applications already submitted).
'Regarding the export business we would like to inform you that due to bad market position the export of Rice going very slow this time. InshaAllah we will start shipments from end of Next month and we will route handsome export business through your bank. In the meantime please note that overdue payment of FAFB Post shipment Rs,2.7 (M) will be realized within 10 to 15 Days we are in contact with our buyer.
'Thanks for your valuable assistance and cooperation in advance, we remain. Yours truly, SD/- Muhammad Saleem Sheikh Proprietor"
49. As far as the liability of the proprietor viz. Mr. Muhammad Saleem Shaikh in his 'PERSONAL CAPACITY' as guarantor is concerned, it is no body's case that Mr. Muhammad Saleem Shaikh has not executed the letters of guarantees in his personal capacity. The finance facility[ies], indeed, were granted to and availed by M/S MILLAT RICE CORPORATION which is the sole proprietorship concern of Mr. Muhammad Saleem Sheikh, but the latter is also a guarantor in his Personal Capacity for the re-payments of the finance facilities granted to and availed by M/S MILLAT RICE CORPORATION. In view of this position, Mr. Muhammad Saleem Sheikh in his personal capacity as guarantor is also liable for the repayment of the outstanding dues owed to the Plaintiff Bank. The relevant clauses i.e, Clauses Nos. 2, 3, 4, 14, 16, 21 and 24, from the letter of GUARANTEES [Annexures P/13 at Page 121] duly signed and executed by Mr. Muhammad Saleem Sheikh in his personal capacity, are reproduced as under:-- "2. That this Guarantee is to be considered joint and several.
3. That this Guarantee shall remain valid and cover any and all transactions which may be undertaken by the Principal Debtor(s) even after a change in the constitution of the Principal Debtor(s) and shall not be revoked as to future transactions from the date of any change in the constitution of the Principal Debtor(s).
4. This Guarantee shall be a continuing security binding the Guarantor(s) for the purpose of securing (subject to the limit specified above) all or any monies due to you from time to time notwithstanding any payments made from time to time to you or any settlement of an account or any other thing whatsoever.
14. It is hereby expressly agreed that any payment or acknowledgment of liability by the Principal Debtor(s) valid for the purposes of the Limitation Act of 1908 (hereinafter the "Act") shall be construed and shall take effect as an acknowledgment in writing of the Guarantor(s) liability under this Guarantee for the purposes of causing a fresh period of limitation to run from the date of such acknowledgment, and the Guarantor(s) hereby constitute the Principal Debtor(s) as their duly authorized agents for the purposes of making such an acknowledgment and for all or any of the purposes or - requirements of the Act and in particular Sections 19 and 20 thereof,
16. The Guarantor(s) agree and confirm that they shall be bound to make payments or perform the obligations of the Principal Debtor(s) under any substitute documents or agreements, which the Principal Debtor(s) may enter into with you as a consequence of any order or judgment effecting the validity, admissibility in evidence, or legality of any earlier documents or agreements.
21. The Guarantor(s) agree that you shall have the power, without any further consent form them and without in any manner affecting their liability under this Guarantee, to renew or modify any agreement with the Principal Debtor(s) and to hold over, renew, vary or given up in whole or in part any bills, notes, mortgages, charges, liens over other securities, including documents received or to be received from the Principal Debtor(s) whether singly or jointly with any other person(s), and to grant time or other indulgence to or compound with the Principal Debtor(s) or any other person(s) liable on such bills, notes, mortgages, charges, liens or other securities or any person liable jointly with or as surety for the Principal Debtor(s) or any other person(s)." [Underlining is mind .
50. Inter alia in terms of letters of guarantee, the proprietor of M/s Millat Rice Corporation in its' capacity as guarantor is also liable to liquidate the outstanding dues owed to the Plaintiff Bank and in terms thereof, the guarantor could not be permitted to avoid his liability. Reliance in this regard is placed on the case of Mian Aftab A. Sheikh and 2 others v. Messrs Trust Leasing Corporation Limited and another [2003 CLD 702] wherein it was observed as follows:- "12. In the present case also appellant guarantors had expressly given their consent as per above reproduced clauses 2, 7, 8, 9 and 10 of the letter of guarantee, dates 23-1-1993 and had assented to any subsequent composition of debt, enlargement of time and other variations between the leasing corporation and the company (UL). The guarantee was a continuing guarantee, permitting the creditor and the principal debtor to vary the terms of the leasing agreement. The appellant guarantors had waived their prior right of consent or assent to such variance. In our opinion, contracting parties had a right to contract out of the privilege of release or discharge by executing an agreement of waiver of prior consent/assent in the guarantee. Rescheduling Memorandum of Understanding dated 21-6-1995 was within contemplation of above clauses and, therefore, did not affect discharge of appellants from their guarantee obligations. It will be hair splitting to state that provisions of section 133 or 135 of the Contract Act visualize consent or assent of the guarantor at the time of variance only and the same cannot be waived by the guarantors in advance. The judgment of the learned Single Judge of Delhi High Court in the case of State Bank of India V. Machine Well Industries ((1983) 5 CC 880) relied upon by the learned counsel for the appellants is almost on the same principles as the case of Pearl Hosiery Mills (AIR 1961 Pun]. 281) which has been dissented from by the learned Division Bench of Karnataka High Court in above-referred case of T. A. Raju v. Bank of Baroda (AIR 1992 Karnataka 108). We in principle agree with the ratio of the case of Bank of Baroda.
13. Furthermore, even if, some of the terms of original contract can be stated to have been novated by Memorandum of Understanding of 21-6-1995, such novation still did not in any way absolve the appellant guarantors of their obligations under the joint guarantee of 23-1-1993 as they had themselves consented in the letter of guarantee to variance of the original agreement between the leasing corporation and the company (UL). The Privy Council in the case of Partap Singh Mohalabahi v. Keshavlal Harilal (AIR 1935 PC 21) also held that only in absence of a surety's consent, a surety shall not be bound for the obligations under the novated agreement.
14. We are also of the opinion that appellants Nos. 1 and 3, upon signing rescheduling agreement had even otherwise given their assent to such rescheduling. The Memorandum of Understanding was signed by appellants Nos. I and 3 in their capacity as directors and/or chief executive and chairman of the Company. Guarantee dated 23-1-1993 was also made and executed by them in the same capacity. It cannot, therefore, be argued that consent/assent of said guarantors was separately required at the time of execution by them of the rescheduling agreement. Appellant No, 2, being wife of appellant No, 1 and mother of appellant No,3, cannot be presumed, to be unaware of unwilling to the rescheduling arrangement signed by appellants Nos. 1 and 3 for and on behalf of the company (UL). It was obviously for this reason that none of the above-said appellants had expressly pleaded in their PLA, discharge or their joint guarantee. " [Underlining is mine].
51. As far as the attachment of two immovable properties belonging to Muhammad Saleem Sheikh and referred to in para 39 of the plaint is concerned, admittedly, the said properties are not mortgaged with Plaintiff Bank. The owner of the said properties, no doubt, besides sole proprietor of M/s Millat Rice Corporation is a guarantor for the liability of M/s Millat Rice Corporation. The details of title documents and description of the two immovable properties belonging to the guarantor viz. Muhammad Saleem Sheikh as given in para 39 of the plaint are as under:- A. Sale Deed dated 02.06.2006 in favour of Defendant in respect of immovable property having Registration No,364, MF Roll No, U 50439/3522, Photo Registrar, Karachi dated 01.07.2006 i.e, "All that piece and parcel of 1.67 Acre equivalent to 8082.8 sq. Yards, from Industrial Open Plot bearing Naclass No,162, out of admeasuring 5 Acres, or thereabout i.e, 24200 Keamari Town, District Karachi West, lying within the territorial jurisdiction of Mauripur Police Station."
B. Conveyance Deed dated 20.08.1995 in favour of Defendant in respect of immovable property having Registration No,1591, MF Roll No,209I, Photo Registrar, Karachi dated 17.09.1995 i.e, "All that 1/8th undivided share in piece and parcel of land bearing Sub Plot No, .FL-4/A-1 of Plot No,FL-4, upon which a Flat Premises No,19 located on Fourth Floor, measuring 268 square yards or thereabout, in the project know n as "Hanging Gardens", situated in Block No,5, KDA Scheme No,5, Kehkashan, Clifton, Karachi. "
52. Keeping in view, the clause [d] of the prayer clause whereby attachment of the two immovable properties under section 16 of F.I.O., 2001 and Order XXXVIII, rule 5, C.P.C. Has been sought, I would like to reproduce herein section 16 of the F.I.O., 2001 and Order XXXVIII, Rule 5, C.P.C. Respectively as under:- A. Section 16 of F.I.O., 2001 "16. Attachment before judgment, injunction and appointment of Receivers. ---(I) Where the suit filed by a financial institution is for the recovery of any amount through the sale of any property which is mortgaged, pledged, hypothecated, assigned, or otherwise charged or which is the subject of any obligation in favour of the financial institution as security for finance or for or in relation to a finance lease, the Banking Court may, on application by the financial institution, with a view to preventing such property from being transferred, alienated, encumbered, wasted or otherwise dealt with in a manner which is likely to impair or prejudice the security in favour of the financial institution, or otherwise in the interest of justice.
(a) restrain the customer and any other concerned person from transferring, alienating, parting with possession or otherwise encumbering, charging, disposing or dealing with the property in any manner;
(b) attach such property;
(c) transfer possession of such properly, to the financial institution; or
(d) appoint one or more Receivers of such property on such terms and conditions as it may deem fit.
(2) An order under subsection (I) may also be passed by the Banking Court in respect of any property held benami in the name of an ostensible owner whether acquired before or after the grant of finance by the financial institution.
(3) In cases where a customer has obtained property or financing through a finance lease, or has executed an agreement in connection with a mortgage, charge or pledge in terms whereof the financial institution is authorised to recover or take over possession of the property without filing a suit, the financial institution may, at its option--
(a) directly recover the same if the property is movable; or
(b) file a suit hereunder and the Banking Court may pass an order at any time, either authorising the financial institution to recover the property directly or with the assistance of the Court: Provided that in the event the financial institution wrongly or unjustifiably exercises the direct power of recovery hereunder it shall be liable to pay such compensation to the customer as may be adjudged by the Banking Court in summary proceedings to be initiated on the application of the customer and concluded in thirty days.
(4) Nothing in subsections (1) to (3) shall affect the powers of the Banking Court under Order XXXVIII, Rules 5 and 6 of the Code of Civil Procedure, 1908 (Act V of 1908) to attach before judgment any property other than property mentioned in subsection (I). [Underlining is mine].
B. Order XXXVIII, Rule 5, C.P.C.
"5 - (1) Where at any stage of a suit, the Court is satisfied, by affidavit or otherwise, that the defendant with intent to obstruct or delay the execution of any decree that may be passed against him - a) is about to dispose of the whole or any part of his property, or b) is about to remove the whole or any part of his property from the local limits of the jurisdiction of the Court the court may direct the defendant, within a time to be fixed by it either to furnish security in such sum as may be specified in the order, to produce and place at the disposal of the Court, when required, the said property or the value of the same, or such portion thereof as may be sufficient to satisfy the decree, or to appear and show cause why he should not furnish security.
[Underlining is mine].
53. From perusal of the afore-said provisions of section 16 of F.I.O., 2001, it is quite clear that only those movables and immovable properties which are mortgaged, hypothecated, pledged, assigned or otherwise, charged in favour of the financial institutions as security for finances etc. Then orders to the effect as mentioned in the said provision of section 16 of F.I.O., 2001 can be passed. Besides, under this provision of law only those properties of which sale has been sought and which are also subject matter of any obligation then an order of the nature as per section 16 of F.I.O., 2001 can only be passed by the Banking Court on the application of financial institution. In the case in hand, however, the two immovable properties of which attachment has been sought are not charged in manner whatsoever with Plaintiff Bank. Likewise, the requisite ingredients of Rule 5(1)
(a)(b) are also missing from the pleadings. In view of the above, the attachment of the aforesaid two immovable properties, per prayer clause [d], having been sought by the Plaintiff Bank cannot be granted much-less at this stage. On this aspect of the matter reliance is placed on the case of MCB Bank Limited v. Messrs Atlas Rubber and Plastic Industries Pvt. Ltd. And 6 others [2011 CLD 1550], wherein it was observed as follows:- "3. ... More specifically, the subject property has not been charged or mortgaged by the defendant No, 3 with the plaintiff bank in respect of the finance facilities provided to the defendant No,). An immediate question that therefore arose was as to how the subject property could be attached in terms of section 16(1) of the 2001, Ordinance. When confronted with this situation, learned counsel for plaintiff bank fairly (and in my view quite correctly) conceded that section 16(1) had no application in the facts and circumstances of the present case, and he, therefore, abandoned any prayer for attachment of the subject property in terms of that provision. However, learned counsel drew attention to subsection (4) of section 16, which expressly provides that nothing in, inter alia, subsection (1) shall affect the powers of the Banking Court under Order XXXVIII, rules 5 and 6, C.P.C., and submitted that the Plaintiff Bank was entitled to an attachment before judgment of the subject property in terms of the latter provision. To substantiate his claim in terms of Order XXXVIII, learned counsel submitted that the defendant No,3 had sought to sell off the subject property after the institution of the suit and after, apparently, having been served the matter. He submitted that the plaintiff bank became aware of the sale only when the matter was advertised in the newspapers on or about 14-4-2010. In these circumstances, according to learned counsel, all the ingredients of rules 5 and 6 of Order LIOCVIII were attracted and the property was liable to be attached."
"5. ... It is, of course, settled law that simply because a person has given a personal guarantee in respect of an outstanding loan, that does not mean that he therefore stands precluded from dealing with his properties and assets in accordance with law and in such manner as he deems appropriate. Simply because a suit has been filed against a guarantor does not in and of itself entitle the creditor to come forward and; in effect, restrain the guarantor from dealing with his properties. The creditor must show something specific and additional as required in terms of Rule 5 of Order LIOCVIH, i.e,, that the concerned defendant is disposing off, or is about to dispose off his property with intent to defeat or delay any decree that may be made in the suit. A mere bald assertion in this regard is not enough. In the facts and circumstances of the present case, it appears that the only reason why the plaintiff bank seeks relief by way of attachment before judgment is on account of the advertisement that appeared with regard to the subject property and the sale transaction in respect thereof. In my view, this is insufficient to entitle the plaintiff bank to obtain attachment before judgment. If at all the plaintiff bank succeeds against the defendant No,3, it would be entitled to a personal decree against him in respect of the amount decreed against him. In such an eventuality (and of course, it is to be noted that this is something that remains yet to be decided), if the defendant No, 3 fails to make payment of the decretal amount, the plaintiff bank would be required to pursue execution proceedings against the said defendant in the manner required by law. In my view, simply on the basis of a bald assertion, and without anything more, the plaintiff Bank cannot be allowed to bypass the process of the law and, in effect, obtain something against thy defendant No,3 to which it is not directly entitled, i.e,, an immediate judicial order in respect of his property. [Underlining is mine].
54. Like-wise, in the case of Muhammad Ather Hafeez Khan v. Messrs Ssangyong and Usmani JV [PLD 2011 Kar. 605], it was held that the purpose behind Order XXXVIII, C.P.C. Is not to guarantee the claim of the Plaintiff who is seeking an attachment before judgment. The relevant portions of the case are reproduced as under: "10. ... The purpose behind Order =VIII is not to guarantee to a plaintiff that there will always be an asset available in the jurisdiction to satisfy his claim, should he ultimately succeed in his action.
That is not the function or duty of a court of law. The purpose behind Order XXXVIII is to ensure that a defendant does not abuse the process of the court, in the sense that he is able, pending adjudication of the claim against him, to make himself judgment proof. That his acts, undertaken in the normal course, may for all practical purposes have such an effect is also not sufficient; it must be shown that he acted with intent to bring about such an effect."
"21. The last point that needs attention is the submission by learned counsel for the plaintiff that the situation at hand is covered by Order rOCIX, Rule 1(b), C.P.C. This provision empowers the court to grant an injunction if "the defendant threatens or7ntends to remove or dispose of his property with a view to defraud his creditors". While in one sense, the language of this provision is broader than that used in Order XXXVIII, Rule 5 (inasmuch as a mere "threat" is sufficient), in its applicability, the provision is narrower, and indeed, directed towards another purpose altogether.
The objective is to prevent a defendant from "defrauding" his "creditors", and not to defeat or frustrate any decree that may be made against him. The material on which the court can come to one or the other of these conclusions is not the same, and what may be sufficient for one purpose may be insufficient or irrelevant for the other. The threat or intention must be established by definite information, and a case of fraud clearly spelt out. " ... [Underlining is mine].
55. Indeed, at this juncture, it is important to note that every officer of a bank who besides, trusted with the money of the bank, is responsible for recommending, approving and advancing finance facility[ies], is always required to exercise 'due care' and 'caution' i.e, before sanctioning or providing any sort of finance facility[ies] to the customers/borrowers. Moreover, such officer is also required to obtain sufficient security[ies] for securing the finance facilities so that the bank/financial institutions in case of default, if committed by the customer[s], the Bank may not face and/or suffer losses. With a view to avoid any sort of negligence and/or lapses on the part of the bank's officials, the State Bank of Pakistan [In short SBP], under the provisions of the Banking Companies Ordinance, 1962 has also issued guidelines in the shape of Prudential Regulations for regulating the business of Banking in Pakistan. The relevant Regulations Nos.III and XVIII are respectively reproduced as follows:- "A. Regulation III: 'Limit on Bank's exposure against unsecured advances.--- No bank shall provide financing facility in any form of a sum exceeding Rs,1,00,000 (Rupees one hundred thousand only) to any one individual or person without obtaining realisable securities of the value not below the outstanding amount. Financing facilities granted without securities including those granted against personal guarantees shall be deemed as 'clean' for the purpose of credit regulations. Provided further that- --
(a) at the time of granting a clean facility, banks shall obtain a written declaration to the effect that the borrower in his own name or in the name of his family members, has not availed of such facilities from other banks so as to exceed the prescribed limit of Rs, 1,00,000 in aggregate;
(b) no clean facility shall be granted to frustrate the objective of credit restrictions in force for the time being.
(c) the purpose for which a clean facility is sanctioned shall be expressly stated in the sanction letter.
Clean facilities granted to finance the export of commodities eligible under export finance scheme shall be exempt from the per party limit on clean facilities. - 'The aggregate exposure of a bank against all its clean facilities shall not, at any point of time, exceed the amount of the bank's capital and general reserves (free of losses).
'Any violation or circumvention of the above Regulation shall render the bank liable, for penalties under the Banking Companies Ordinance, 1962. [Underlining is mine] .
'Advances given to employees of a bank in accordance with their entitlement, shall be exempt from the application of the Regulation IL"
B. Regulation XVIII: 'Minimum conditions for grant of finance facilities.--- Each bank is mandated to institute such system or procedure or take such steps as it deemed fit to ensure that defaulters are not accommodated. Every bank is, therefore, required to obtain information about the total outstanding liabilities to banks and financial institutions (from Credit Information Department of the State Bank) of any applicant seeking financial accommodation involving the sum of Rs, 0.5 million or more before approving any lending. In case of those who are reportedly in default no fresh accommodation whether fund based or otherwise would be allowed unless rescheduling or restructuring of outstanding liabilities is done to the satisfaction of lending banks by the respective borrowers. If in exceptional circumstances, a bank decides to provide such financing to any person, firm or company who is reportedly a defaulter as per information supplied by the Credit Information Department or any other Banks/D.F.Is. It shall place on record circumstances or reasons necessitating grant of any accommodation in such cases. The State Bank may, if necessary, undertake special inspection of such exceptions. "
56. From the above, it is manifestly clear that if, an officer of the bank who is also responsible for disbursement, acts negligently or otherwise, omits to take sufficient care in extending/advancing finance facilities as per the aforesaid regulations then of course, such officer is to suffer. The bank, it is needless to say, in such eventuality would be justified in taking an appropriate and lawful action against such officer inter alia for recovery of losses and/or for the guilt of the criminal breach of trust. Reference in this regard to section 408 of P.P.C., would not be out of place which reads as follows:- "408. Criminal breach of trust by clerk or servant.---Whoever, being a clerk or servant or employed as a clerk, or servant, and being in any manner entrusted in such capacity with property, or with any dominion over property, commits criminal breach of trust in respect of that property, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine. "
57. As far as the contention of Mr. Ali Raza that after incorporation of Article 10-A in the Constitution of Islamic Republic of Pakistan, 1973 a 'fair trial' and 'due process' have become a fundamental right of every litigant, is concerned, the same needs no debate but at the same time Article 4 of the Constitution of Islamic Republic of Pakistan, 1973 is also of great importance which says that no action, detrimental to the life, liberty, body, reputation or property of any person shall be taken, however, except in accordance with law. Thus Article 4, of course, reinforces, the legal position, that a person can be dealt with or deprived of rights if, it is provided and prescribed otherwise, by any law. Both Articles 4 and 10-A of the Constitution of Islamic Republic of Pakistan, 1973 are to be read in juxta-position of each other. Both the afore-said Articles read as follows:- "4. (1) to enjoy the protection of law and to be treated in accordance with law is the inalienable right of every citizen wherever he may be, and of every other person for the time being within Pakistan.
(2) In particular--
(a) no action detrimental to the life, liberty, body, reputation or property of any person shall be taken except in accordance with law.
(b) No person shall be prevented from or be hindered in doing that which is not prohibited by law; and
(c) No person shall be compelled to do that which the law does not require him to do.
"10-A, Right to fair trial---For the determination of his civil rights and obligations or in any criminal charge against him a person shall be entitled to a fair trial and due process."
58. No doubt, Article 10-A of the Constitution of Islamic Republic of Pakistan, 1973, ensures 'fair trial' and 'due process' but at the same time if, fair trial is not provided then, of course, the aggrieved person, would be at liberty to seek his remedy before an appropriate forum in accordance with law.
As far as the issue whether the Defendant has committed any criminal offence in terms of section 20 of F.I.O., 2001 or not is a matter which can only be dealt with/agitated in accordance with law before the appropriate forum. In the case in hand, however, after hearing both the learned counsel for the parties at length, I have come to the conclusion that the Defendant has failed to raise any substantial question of facts and law which may need recording of evidence. In view of this position the 'LEAVE-TO-DEFEND APPLICATION' bearing C.M.A. No,1189 of 2009 stand rejected.
59. Manifestly, in the case in hand, the Defendant has not only admitted the availment of finance facilities but also the major portion of outstanding liability as per para 33 of the 'LEAVE-TO-DEFEND APPLICATION'. According to para 33, the amount of 'CASH FINANCE FACILITY' [In short CF], availed by the Defendant is in the sum of Rs,49,900,000/- and the payable amount of 'Cash Finance Facility and other amounts relating to finance is Rs,53,900,000/-. The paid amount by the Defendant towards' CASH FINANCE FACILITY' is only Rs,5,093,008.33 which if deducted from Rs, 53,900,000/- the balance comes to Rs,48,806,699.63. The actual amount of markup on the availed amount of Rs, 49,900,000/- nonetheless, comes to Rs,9,880,000/-. The total of these two amounts [i.e, Rs,49,900,000/- [+] Rs,9,880,000/-] is Rs,59,780,000/-. From this amount if, the paid amount of Rs,5,093,008.33 is deducted then, the balance outstanding payable amount comes to Rs,54,686,991.67.
60. Likewise, the amount admittedly availed on account of FAFB facility is Rs,2,700,000/-, out of which the admitted amount paid by the Defendant comes to Rs,2,577,569.75. Upon deducting this amount from Rs,2,700,000/-, the balance comes to Rs,336,999.85. Adding this amount of Rs,336,999.85 of FBFB with the balance outstanding amount of Cash Finance i.e, Rs,54,686,991.61 the total outstanding amount on account of both the aforesaid facilities comes to Rs,55,023,991.52.
[Rupees Fifty Five Million Twenty Three Thousand Nine Hundred Ninety One and Paisas fifty two only].
61. According to the Defendant's stand the value of STOCK OF PLEDGED RICE is Rs,40,000,000/- but per record the sale proceeds received and adjusted by the Bank is Rs,21,273,905/-. Upon deducting the amount of sale proceeds of PLEDGED GOODS in the sum of Rs,21,273,905/-, the balance outstanding amount on account of both facilities thus comes to Rs,33,750,086.52 only. In view of this position and for all the fore-going discussion, the Plaintiffs suit, is decreed in the sum of Rs,33,750,086.52 [Rupees Thirty Three Million Seven Hundred Fifty Thousand Eighty Six and Paisas Fifty Two only] plus cost of funds as certified by the State Bank of Pakistan from time to time .In terms of section 3 of F.I.O., 2001 w.e.f, 01.11.2009 till realization of the decretal amount against the Defendant. Mr. Muhammad Saleem Shaikh is also found liable in his capacity as a guarantor to the extent of guaranteed amount. Besides, the suit is also decreed for sale of the pledged/hypothecated goods, if any. Cost of the suit is also allowed. As far as the prayer clause 'd is concerned, under the facts circumstances of the case, the same is disallowed, however, the Plaintiff Bank would be at liberty to seek appropriate relief in accordance with law in the execution proceedings, if the Defendant failed to pay the decretal amount.
Suit stands decreed.