' This is a petition under section 39 of the Industrial Development Bank of Pakistan, Ordinance, 1961 (hereinafter referred to as the Ordinance), which was filed on 17-5-1976 for the recovery of Rs,3,18,851.89. Upon the promulgation of President Order III of 1982 Foreign Currency Loans (Rate of Exchange) Order, 1982 (hereinafter referred to as the Order), the petitioner filed an amended petition on 7-5-1984 with the permission of this Court claiming an amount in foreign currency, namely L.15,388.38 and Rs,8,350.27. Respondent No,2 filed a counter-affidavit for himself as well as on behalf of the borrower company, respondent No,1, dated 21-6-1976. Whereas respondent No, 6 Messrs.' U.B.L. also filed a counter-affidavit, dated 6-7-1976.
' The brief facts leading to the filing of the above petition are that the petitioner granted a foreign currency loan in Pound Sterling amounting to L.17,739 then equivalent to Pak. Rupees amounting to Rs,2,40,000 in June, 1964, repayable in 18 half yearly installments commencing from 30-4-1966 and ending on 31-10-1974. In order to secure the above loan, respondent No,1 executed a number of documents, namely, credit agreement, dated 26-6-1964, agreement to create mortgage on future assets, dated 16-6-1964, another agreement to crest mortgage on future assets, dated 30-6-1965 and agreement of hypothecation, dated 26-6-1964 Exhs. 5/1 to 5/4, respectively. Respondents Nos.
2 to 4 executed personal letter of Bank guarantee, dated 26-6-1964 Exh.5/6. It seems that in the year 1965 an additional foreign currency loan/ advance/accommodation of L.7,809 then equivalent to Pak. Rs,1,04,000 was granted to respondent No,1, repayable in 18 half yearly installments commencing from 30-4-1966 and ending on 31-10-1974. With the object to secure this additional loan, respondent No,1 executed credit agreement, dated 8-4-1965, agreement of hypothecation, dated 8-4-1965, agreement to create mortgage on future assets, dated 3-8-1965, and the letter of guarantee executed by respondents Nos. 2 to 5, dated 8-4-1965 Exhs. 5/7, 5/8, 5/9 and 5/10, respectively. Respondent No,6 Messrs.' U.B.L. executed two bank guarantees, dated 23rd June, 1964 and 10th March, 1965 Exhs. 5/6 and 5/11.
2. That 'since according to the petitioner the respondents had not paid the entire due amount, the above petition was filed under section 39 of the Ordinance. The above petition has been resisted by the respondents. Respondent No,2 in his aforesaid counter-affidavit, has averred that factually the respondents had paid amount in excess to the amount what was due. It has also been averred by respondent No, 6 Messrs.',' U.B.L. that they stand discharged.
' The petitioner in support of the petition examined P.W.1 Rafaat Saeed Siddiqui Exh.5, who has produced the above documents and the other relevant correspondence on the subject including a statement of accounts Exhs.5/1 to 5/33. None of the respondents produced any evidence.
3. In support of the above petition it has been contended by Mr. A.I. Chundrigar, learned counsel for the petitioner that the petitioner's claim stands proved as reflected in statement of account Exh.5/32 as no evidence in rebuttal has been tenderettl by the respondents.
' On the other hand it has been contended by Mr. Khalil Qureshi, learned counsel for respondents 2 and 3 that factually the respondents have paid more than the due amount. It has been further urged by him that Exh.5/32 the statement of account filed by the petitioner does not reflect the correct position as certain credit entries have not been made in respect of the payment made by the respondent.
4 (a) I have gone through the evidence and I have found that on 30-6-1972 respondent No,6 on behalf of respondent No,1 had paid a sum of Rs,2,24,134.27, which was not adjusted in lump sum, but the same was adjusted in piece meal on. 3 different dates as per P.W.1 Rafaat Saeed Siddiqui. It may be advantageous to reproduce the relevant portion of the statement of the above witness, which reads as follows:- "The amount of Rs,3,18,851.89 mentioned in the original petition was due amount as on 31-12-1975.
The amount of Rs,2,24,134.27 received by the petitioner bank on 30th June, 1972 was adjusted against loan amount of respondent No,1 and the above sum of Rs,3,18,851.89 was the balance after the adjustment. The above sum of Rs,2,24,134.27 was given adjustment in the following manner:-
(i) Pak rupees equivalent to L.3,097.77 adjusted on 30-6-1972.
(ii) Pak. Rupees equivalent to L.1752.62 adjusted on 30-10-1972.
(iii) Pak. Rupees equivalent to L.2852.01 adjusted on 18-4-1973. Court Question.-- ' What was the reason that you had given the adjustment of the above amount in piecemeal on 3 different dates.
' Ans.-- I cannot give any reason as there appears no reason from the record."
' From the above quoted portion of the statement of P.W.1, it is evident that there seems to be no plausible reason as to why respondent No,1 was not given credit for the above entire amount of Rs,2,24,134.27 on 30th June, 1972, though the payment was received. In this View of the matter, the statement of account is to be re-worked on the assumption that respondent No,1 had paid the above sum of Rs,2,24,134.27 on 30-6-1972 and a credit entry is to be made on the above date on the basis of the rate of foreign exchange in question prevalent on the above date.
(b) It may be stated that during the pendency of the present petition by consent of the parties the mortgage factory was put to sale and on account of the above sale a sum of Rs,1,54,000 was deposited with the Nazir of this Court in favour of the petitioner on 4-6-1980. The petitioner made an application for the withdrawal of the above amount on 7-3-1982 i.e, after the expiry of nearly one year and 3 months. The above application was granted on 7-3-1982 and a cheque in respect thereof was received by the petitioner on 22-3-1982. I am of the view that the respondents cannot be penalized for filing of the above application for the withdrawal of the above amount after the expiry of the above period as admittedly the factory was sold with the consent of the respondents and, there was no objection from their side to the withdrawal of the above amount by the petitioner. In this view of the matter, the credit entry of the above amount of Rs,1,54,000 is to be made on a date falling on the expiry of the period actually lapsed between the date of filing of the above application and the issuance of the cheque for the amount namely, from 17-9-1981 to 22-3- 1982 i.e, 6 months and 6 days from the date of deposit of the above amount with the Nazir of this Court, namely, on 4-6-1980. In other words, credit entry of the above sum of Rs,1,54,000 is to be made on 10-12-1980 in the statement of account on the basis of the rate of foreign exchange prevalent on the above date.
5. It may also be pertinent to observe that in a number of cases I have taken the view that in terms of section 3 of the Order, the petitioner are entitled to claim the balance of the loan amount, if any, and the contracted amount of interest in foreign currency and not any other account/obligation payable under the credit agreements namely the amount of penal interest and 1% foreign currency risk etc., which are payable in local currency including the interest at the contracted rate of interest for the entire period upto the date of submission of report.
' I have also held that the petitioner is not entitled to any penal interest from the date of a suit. In the present case the petition was filed on 17-5-1976, and, therefore, the petitioner shall not be entitled to any penal interest from this date till payment. Reference may be made to the case of I.D.B.P. v. Messrs.' Yousuf Industries Ltd. and 3 others, reported in PLD 1984, Kar. 345, the case of I.D.B.P. v. Maida Ltd. and 3 others, reported in 1984 CLC 2987 and the case of Messrs.',' U.B.L. v.
Messrs.',' Textile Accessories (Pakistan) Ltd. and another, reported in 1984 CLC 3189.
6. In my view, before an order for the recovery of any amount can be made, it will be proper to appoint a Commissioner for re-working out the due amount, if any from the respondents to the petitioner in terms of this judgment. I would, therefore, appoint official Assignee as the Commissioner to work out the due amount if any, on the above basis. The petitioner and respondent No,2 shall deposit the Commis sioner's tentative fee of Rs,750 each within 2 weeks. The official Assignee shall submit the report within 6 weeks thereafter.