SHAHID KARIM, J.--- This is a suit for recovery of Rs. 120,066,533 42. Three applications for leave to defend have been filed by the defendants. This order shall decide theses applications which are taken up in seriatim.
PLA No. 215123:
2. This application has been filed by defendants No. 5 and 6. The said defendan ts accepted the old guarantees executed on 4.2.2014. However , the precise case of these defendants is that pursuant to clause 2 of the letter of guarantee, a notice was served on the plaintif fs expressing the intention of the defendants of discontinuance of these guarantees. This notice, according to the learned counsel for the defendants, is sufficient to discharge the liability of these defendants. The letter dated 8.8.2014 which was in the nature of a legal notice, which the defendants served on the plaintif f-Bank, has been attached with the application for leave to defend and which has not been denied by the plaintif f-Bank. Through this notice it has been categorically stated that any transactions of the company with the financial institution s is void and invalid and do not burden the said defendants with any personal liability . Clearly , therefore, the defendants No. 5 and 6 have in compliance of clause 2 of the personal guarantee informed not only the other directors of the defendant No. 1 company but also the financial institutions.
There was a clear intent to discontinue the binding nature of the personal guarantee executed by the defendants.
These defendants are therefore not liable for the repayment of finance facility in respect of which the instant suit has been brought and stand discharged of their personal guarantees. Consequently , the application for leave to defend is allowed and the plaint to the extent of the defendants No. 5 and 6 is hereby rejected.
PLA No. 215825 of 2018:
3. This application has been filed by the defendants No. 1. 2 and 4. The learned counsel for the applicant raised preliminary objections which are in the nature of customary defenses like the court-fee being not in the name of the plaintif f-Bank as also that, the statement of accounts has not been certified in acco rdance with law. However , upon perusal of the documents these objection s are clearly unfounded and there is no substance in them to give rise to substantial questions of law and fact.
4. The defendants have admitted the availing of the facility . This is apparent from paragraph 14 of the application for leave to defend in which the only ground mentioned is to the effect that the failure on the part of the plaintif f- Bank to renew the facilities resulted in substantial losses to the said defendants. Suffice to say that this ground can form the basis for seeking a remedy in separate proceedings but does not give rise to substantial question of fact and law and to entitle the defendants to the grant of leave to defend. The application for leave to defend of these defendants is hereby dismissed.
PLA No. 215495 of 2018:
5. This application has been filed by the defendant No. 3 which has been array ed as a guarantor as well as a mortgagor . The learned counsel for the applicant referred to page 120 of the plain t to refer to the properties which were mentioned as security for the finance facilities to be availed by the defendant No. 1. This document is a facility offer letter dated 16.02.2015. According to the learned counsel the column relating to properties to be. kept with incomplete property documents, as it is, as default comfort" was inserted later on and did not form part of the facility offer letter originally issued. Learned counsel referred to the document attached with the application for leave to defend which is also in the nature of facility offer letter dated 16.02. 2015 and in which the column regarding properties mentioned above is conspicuous by its absence. This document according to the learned counsel was sent to the defendant No. 3 by the plaintif f-Bank through courier . However , no proof of the courier has been attached with the application for leave to defend. Moreover , this document is categorically denied by the plaintif f-Bank and reliance can be placed on this document since the original document annexed with the plaint purporting to be a facility offer letter dated 16.02.2015 is not denied by the defendant No. 1 which was the principal borrower . Elie counsel for the defendant No. 3 also submitted that a suit has been filed with the Banking Court, Gujranwala regarding the property documents in the possession of the plaintif f-Bank and in which alongwith application for leave to defend the facility offer letter of 16.02.2015 was filed containing different terms. In response to this, it would suffice to say that the document filed in another suit will not have any impact on the cogency or otherwise of the facility offer letter filed in the present suit and its effect will have to be determined in the suit by the defendant No. 3 which is still pending with the Banking Court at Gujranwala.
6. The learned counsel for the applicant/defendant No. 3 admits that the applicant was a director of the company .
No suit has been filed to cancel the MODT of 2008 which forms the basis. of the security documents relied upon in the present suit. It is also not the case of the applicant that the three MODT s dated 09.06.2008 has been, procured by fraud or that they were not executed by the defendant No. 3. Also, in respect to two of the properties the sale- deeds are still with the plaintif f-Bank and no plausible reasons have been put forth by the defendant No. 3 as to why no steps have been taken for the title documents to be recovered from the plaintif f-Bank.
7. The plaintif f has relied upon the properties belonging to the defendant No. 3 as forming the security for the finance facilities which were availed by the defendants. The description of this property has been mentioned in paragraph 11 of the plaint. A reference was Made to the facility offer letters since the year 2008 which mentions the MODT executed in respect of the properties of defendant No. 3. For instance. the facility Offer letter dated 09.06.2008 specifically mentions in the documents relating to securities that the securities in the account of M/S. Mundo Sports was also regarding the facilities approved in the account of the defendant No. 1 company . This term was followed in the successive facility offer `letters' executed between the parties. Thus, clearly the defendant No. 3 had created the-mortgage over his properties at the execution of MODT and it does not matter whether some of the properties were fard-based or not and in respect of other sale-deeds have been submitted as title documents; This is a matter between contracting parties and if the contract envisaged such an arrangement, it does not lie upon this Court to hold the transaction to be void or illegal. This application for leave to defend is without merit and is dismissed.
8. In view of the foregoing, the applications for leave to defend filed by the defenda nts. No. 1, 2. 3 and 4 are hereby dismissed.
9. As a result of the dismissal of the applications for leave to defend, the instant suit is decreed in favour of the plaintif f-Bank and against the defendants No. 1, 2, 3 and 4 jointly and severally for a sum of Rs. 120,066,533.42 with costs of funds in terms of section 3 of the Ordinance 2001. The costs of the suit are also granted.
10. The decree having been passed, the suit to the extent of defendants stands converted into execution proceedings. The particulars of the mortgaged, pledged or hypothecated property shall be filed by the decree- holder . Adjourned to 07.04.2020.