' This is an application by the defendants for leave to appear and defend the suit. Mr. Shabbir Ahmed Awan, the learned counsel for the defendants, submits that the plaintiff has impleaded only Mrs. Ghulam Sarwar as L.R. of the deceased defendant No,1 and has failed to implead two daughters of the said deceased defendant. Mr. Muhammad Sadiq Khan, the learned counsel for the plaintiff, submits, in reply that failure to implead other alleged L.Rs, of the deceased defendant No,1 is not fatal to the suit because the L.R., who has been joined, will only be liable to the extent of any estate of the deceased defendant No,1 which she might have inherited.
2. Mr. Awan then submits that the promissory note (Annexure 'P' to the plaint) and the other documents which were signed by all the defendants including the deceased defendant No,1 were blank when they were signed because these documents are all dated the 20th June, 1989, whereas the deceased defendant No,1 died on the 25th April, 1983. Mr. Sadiq Khan states, in reply, that the plaintiff was entitled to fill in the blank documents even after the death of the deceased defendant No,1 and that, in any case, even if these documents are considered not to be valid, the defendants are liable under the terms of the deeds of mortgage. The defendants have by deed of mortgage dated the 16th December, 1981, a photocopy of which is Annexure 'E' to the plaint, undertaken personal liability to pay the amount of loan advanced by the plaintiff. It may be observed that although in the mortgage deed M/s. Nishat Cinema have been described as principal borrowers and the defendants Nos.1, 2 and 3 have been described as mortgagers, the defendants are partners of M/s. Nishat Cinema and are, therefore, the borrowers themselves. The defendants have also executed an additional mortgage deed dated the 14th Dcember, 1982, by way of further charge in continuation and furtherance of the earlier deed of mortgage. The submission of the learned counsel for the plaintiff is, therefore, correct.
3. It is next contended by Mr. Shabbir Awan that the plaintiff has charged penal interest which it was not entitled to do. The short answer to the contention is that the mortgage deed dated the 16th December, 1981, provides, by clause 4(a) thereof, for payment of penal interest at the rate of 5% per annum in addition to the usual interest in case of default in payment by the defendants.
4. Finally, it is contended by Mr. Shabbir Ahmad Awan that the plaintiffs have wrongfully and illegally debited to the account of the defendants a total sum of Rs,1,000 on account of godown charges and stamp charges. Mr. Sadiq Khan says that godown charges and stamp charges have been correctly debited and that he can produce the necessary documents to justify the debits but that in view of the bulk of the documents required for proving the correctness of these charges, he is prepared to give up the plaintiff's claim on account of godown charges and stamp charges. Mr. Awan, however, submits that it is not enough for the plaintiff to give up claim to the extent of Rs,1,000 only because they have charged interest on that amount and, therefore, the amount wrongfully claimed by the plaintiffs on account of godown charges and stamp charges would come to much more than Rs,1,000. Mr. Sadiq Khan says that it is not possible for him to immediately state what the amount claimed on account of go down charges and stamp charges inclusive of interest thereon would be but it would in the region of Rs,7,000 approximately. He, therefore, agrees that leave to defend the suit may be granted to the defendants to the extent of the amount of Rs,7,000.
5. In the circumstances, the defendants have failed to disclose an defense whatsoever with the possible exception of their objection to the claim of the plaintiffs on account of go down charges and stamp charges. I would therefore, grant unconditional leave to the defendants to appear and defene the suit only on the question of the plaintiff's right to claim go down charge and stamp charges and since the amount of such charges is tentatively agree( to be Rs,7,000, would decree the suit of the plaintiff for the remaining amount It is, therefore, declared that the amount due on the mortgage in the suit is Rs,35,72,215 with interest thereon at the rate of 4% above bank rate write minimum of 14% per annum with quarterly rests from the date of the suit the payment and costs of the suit. Let preliminary decree in Form 5-A Appendix "D" Schedule I, C.P.C. be prepared.