' This is a suit under Banking Companies (Recovery of Loans) Ordinance for Rs,38,49,918.26. The case of the plaintiff Bank is that it had, at the request of the defendants, granted them banking facilities and financial accommodation in respect of its various accounts maintained in the name and the style of M/s. International Commercial Traders. As per averments made in the plaint, a net amount of Rs,13,21,000 was advanced by the plaintiff to the defendants between June 1982 to January 1983 and in respect of these advances the defendants firm had executed a demand promissory note in Bank as Security, undertaking to pay the plaintiff said amount together with interest at 4% above the bank rate but at the minimum rate of 14% per annum with quarterly rests.
This demand promissory note was executed on 29-6-1982 for a sum of Rs,17,11,000. The dues of the bank having not been paid in time and even after considerable time, the present suit was filed for their recovery.
2. Through this application under Order 37, Rule 3 (C.MA. No,2789/91) the defendants seek permission to defend the suit unconditionally. It is stated in this application that the suit is not maintainable in its present form because it is filed against the firm through its proprietor whereas the firm is a partnership concern. It was also alleged that the suit was time-barred because it related to transactions which had taken place in 1979 and 1982 whereas the suit was filed in 1990.
The defendants also expressed their ignorance as to whether they owed anything to the plaintiff bank and claimed that the plaintiff bank had not supplied them with any statement of accounts. It was also claimed that the suit was premature and uncalled for. The defendants also claimed that the entire principal amount has been paid by them and nothing was due on that account except the interest and in this regard it was stated that the plaintiff bank was not entitled to charge interest which was not permissible in Islamic Law. I have heard learned counsel for the parties.
3. The first point which was raised by the learned counsel for the defendants was that the suit as framed was not maintainable because the defendant firm was sued through its proprietor as if it were a proprietary concern whereas, in fact, it is a partnership concern and in this regard learned counsel referred me to various documents placed on record by the plaintiff himself, namely, Annexures 'A', 'C', 'D', 'D-1', `G-3', `G-4', `G-6' and 'G- 12'. It may be noted that Annexure 'A' is copy of the promissory note in question on which Arif Mehmood has signed as partner of the defendant firm. A similar position is revealed by the other documents. However, in the account opening form Arif Mehmood has designated himself as "Proprietor" and had scored out the word "Partner" and it is thus obvious that the plaintiff bank was given to understand that defendant No,1 concern was a proprietary concern and not a partnership concern. As such, no exception can be taken to the plaintiffs suing the defendant firm through its "Proprietor". Even so, vide order dated 15-3-1992 the plaintiffs were allowed to amend the plaint so as to sue the defendants firm as a partnership concern. As such, the objection raised by the learned counsel for the defendants is redundant. It is therefore rejected.
4. The second objection taken by learned counsel for the defendants is that the suit is barred by time. In this respect, learned counsel for the defendants referred me to para. 12 of the plaint.
However, the defendants had acknowledged their liabilities vide their letter dated 2411-1988 Annexure 'G 15'. Learned counsel for the defendants admitted this position but argued that on the date on which this letter was sent (i.e. on 24-11-1988) the claim had already become time-barred and therefore this acknowledgement could not revive the claim and in this regard reliance was placed by learned counsel for the defendants on the judgment reported as Allied Bank v. Safdar Ali Khan PLD 1988 SC (AJ&K) 199 in which it is held that in view of section 19 of Limitation Act, an acknolwedgement of debt made by a debtor after the expiry of the period of limitation is of no help to the creditor, that such an acknowledgment is illegal and cannot revive the period under which the suit could have been filed. It was therefore argued that letter of defendants dated 24-11-1988 (Annexure 'G-5' to the plaint), even though it was in the nature of acknowledgment of debt, did not enlarge the period of limitation because on 24-11-1988 the claim of the plaintiff had already become time-barred. It is, however, not possible to say so with any degree of certainty because eversince the amount had become due, the defendants had been sending various letters in respect of the financial transactions in question and it cannot be stated at this stage that on this date the suit was barred by time. This objection, so far as this application is concerned, is rejected with the observations that it shall be open to the defendants to raise this point in their written statement. It was next argued by the learned counsel for the defendants that the plaintiff bank had not provided them with the statement of account and therefore it was not possible for them to say as to whether the amount claimed by the plaintiff was really due or not. In this regard, learned counsel for the defendants referred to Annexure `G-5' to the plaint. However, this document is a letter of the defendants themselves and it cannot be stated on its basis that statement of account had not been supplied by the plaintiff bank, notwithstanding the fact that on page 2 of this letter the defendants had claimed that statement of account in respect of LIM Account No,271 had not been supplied. Even otherwise, it is next to impossible to believe that a bank would not submit statement of accounts to its customers. We cannot help taking cognizance of the usual banking practice that the statements of accounts are always sent to the clients regularly and if in any specific case a statement of account has not been sent by a bank, either inadvertently or for some any other reason, it is always open to a customer to obtain a fresh copy of such statement from the Manager of the Bank. I find no force in this contention either. Learned counsel for the defendants also referred to the judgments in the cases of Habib Bank v. Musrat Ali Khan PLD 1987 Kar. 86; I.D.B.P. v. Al-Mansoor Limited PLD 1989 Pesh. 191 and Habib Bank v. Abdul Sultan 1987 CLC 2212. In the above first judgment it was held that raising a triable issue entitles a defendant the right to defend the suit unconditionally and that when a defendant makes out a plausible case, said defendant is entitled to the grant of unconditional leave to defend the suit. In the above-noted second judgment the facts were that the last instalment from the defendant Al-Manzoor Limited fell due on 30-6-1976 but the suit was filed on 30-7-1980 and it was held that the suit having been filed after the expiry of the period of three years from the date when the loan or advance had become due the suit was time-barred and in the above-noted last judgment it was held that when a suit for recovery of loan was filed by a Bank after a delay of more than 10 months without any exception of the delay, the suit deserves to be dismissed. In view of the letter Annexure `G-5' these arguments are beside the point and these judgments did not help the defendants.
5. The undisputed position is that the suit is based on demand promissory note and, under the circumstances, I will allow the defendants to defend the suit on furnishing security within two months to the extent of 50% of the suit amount. With these observations C.M.A. No,2789/91 stands disposed of.