' The present suit had been filed on 6-11-1978 by the plaintiff bank for the recovery of Rs,71,337.47 with interest and costs against the two defendants. Defendant No,1, Junejo Ziauddin Ahmad is the son of defendant No,2, Muhammad Khan Junejo. According to the plaintiffs, loans had been taken by the defendant No,1 and repayment of the loans had been guaranteed by the defendant No,2. On 17-4-1979 an ex parte decree was passed against both the defendants. An application was filed by defendant No,1 for setting aside the ex parte decree, dated 17-4-1979 and by order, dated 8-9-1979 the defendant No,1 agreed to pay the decretal amount in instalments as mentioned in the order, dated 8-9-1979. The decree was, therefore, not set aside. Thereafter, any application, C.M.A. No,196 of 1982, was filed by defendant No,2 and finally this application was granted by order, dated 28-9- 1984 and the ex parte decree, as against defendant No,2, was set aside. A written statement, dated 12-2-1984 had already been filed by the defendant No,2. After the decree against defendant No,2 had been set aside, the following issues were settled by order, dated 10-3-1985:- "(1) Whether loan of Rs,15,000 (Rupees fifteen thousand only) was granted to the defendant No,1 at the request of the defendant No,2 in February, 1971 ? If not, what is its effect ?
(2) Whether the loan of Rs,30,000 granted to the defendant No,1 in 1973 was an interest bearing loan ?
(3) Whether the letter of guarantee executed by the defendant No,2 of 31-10-1973 was only by way of collateral security enforceable only in the event tof failure of the plaintiff to realize the amount through foreclosure on the equitable mortgage ?
(4) Whether the suit is barred by limitation as against defendant No,2?
(5) What should the decree be ?"
' After the issues had been settled, the case came up for regular hearing on 24-4-1985, when a statement was made by the learned counsel for defendants that there were chances for compromise and the case was adjourned by consent. The case was again adjourned on 30-5- 1985. On 18-9-1985 the learned counsel for the plaintiff was present but no one had appeared on behalf of the defendants, and the case was adjourned to 18-9-1985. On 17-9-1985, the previous Advocates of defendant No,2 withdrew their power, and the defendant No,2 stated that he had engaged Mr. Khalid Dawood 'Pota, Advocate, who was present. At the request of Mr. Khalid Dawood Pota, the case was adjourned to a date in office. The case is fixed for regular hearing today. No one has appeared on behalf of defendant No,2. Defendant No,2 and his Advocate have been called absent. On behalf of the plaintiff, P.W.1, Muhammad Amin Memon (Exh. 5), an officer of the plaintiff- Bank, gave evidence and thereafter, Mr. G.H. Malik, learned counsel for the plaintiff-Bank, closed the side of the plaintiff. No one is present on behalf of the defendant No,2. I close the side of defendant No,2. I have heard Mr. G.H. Malik, learned counsel for the plaintiff.
2. The first issue is whether loan of Rs,15,000 was granted to defendant No,1 at the request of defendant No,2 in February, 1971. Mr.G.H. Malik, learned counsel for the plaintiff-Bank, admits that th first loan of Rs,15,000 was not granted at the request of defendant No,2. However, Mr. G.H. Malik states that in 1973 a request was made for another loan of Rs,30,000 and this request was made by defendant No,2 and he agreed to give a guarantee not only for the fresh loan but for the earlier loan. The evidence on behalf of the plaintiff-Bank shows that at the request and on the guarantee of defendant No,2 in the sum of Rs,48,000, which covered the earlier loan as well as the fresh loan, the loan of Rs,30,000 was granted by the plaintiff-Bank to defendant No,1. Issue No,1 is decided in the negative but the effect of it is not that in so far as the first loan is concerned, the defendant No,2 is not liable to repay the amount of loan. The evidence shows that a guarantee of Rs,48,000 was given, which covered both the loans i.e. The first loan as well as the second loan.
Issue No,2 is whether the loan of Rs,30,000 granted to defendant No,1 in 1973 was interest-bearing loan. The documents produced in evidence including the promissory note show that the loan was interest-bearing loan. No evidence to the contrary has been led by defendant No,2. Issue No,2 is decided in the affirmative.
Issue No,3 is whether the letter of guarantee executed by defendant No,2 was only by way of collateral security endorsable only in the event of failure of the plaintiff to realize the amount through foreclosure on the equitable mortgage. The burden of this issue was on the defendant No,2. As observed earlier, defendant No,2 has neither appeared nor led any evidence. Issue No,3 is decided against the defendant No,2.
' Issue No,4 is about limitation. It is submitted by the learned counsel for the plaintiff that according to the terms of the guarantee executed by the defendant No,2, the liability of the defendant No,2 arises when a demand is made by the plaintiff-Bank and according to para.8 of the plaint, a demand had been made by the plaintiff-Bank upon defendant No,2 after October, 1976, and according to para.7 of the written statement, defendant No,2 has denied that any demand was made from defendant No,2 regarding repayment of the loan. Even if the statement of defendant No,2 in para.7 of the written statement is accepted that no demand had been made prior to filing of the present suit against defendant No,2, according to Mr.G.H. Malik, learned counsel for the plaintiff-Bank,' the filing of the present suit against defendantNo,2 by itself amounts to making a demand upon defendant No,2. I agree with the learned counsel for the plaintiff on this point. In the circumstances, the suit is not barred by time and issue No,4 is decided in the negative against the defendant No,2.
3. The suit has already been decreed in favour of the plaintiff as against defendant No,1. The plaintiff-Bank is also entitled to a decree as against defendant No,2. I pass a decree in favour of the plaintiff-Bank and as against defendant No,2 in the sum of Rs,71,337.47 with interest at the rate of 14 per cent per annum with quarterly rests from the date of the filing of the suit till realization. The plaintiff shall also be entitled to costs against the defendant No,2.