Facts leading to this appeal are that the respondent was granted loan of Rs.5,50,000 which was paid to the appellant on 29-11-1988 for purchase of Automatic Press under Modernization Scheme.
This loan was to be repaid with mark-up at the rate of Re.0.43 per thousand per day from the date of disbursement of the said loan till repayment. Respondents executed promissory note for Rs.5,50,000, (2) Receipt dated 23-11-1988 confirming the receipt of Rs.5,50,000, (3) Letter of Hypothecation of machinery as security of repayment of loan together with mark up, (4) Letter of consent acknowledging to payment of loan.
2. This loam was to be repaid in the following manner:-- (a)50% of the said loan together with mark-up in the Season 1988-89 and the remaining 50 % of the said loan together with mark-up in the Season 1989-90 after adjusting through deduction at 7- 1/2 of the cost of cotton supplied to plaintiff from all its bills.
3.The defendant only adjusted and repaid a total sum of Rs.2,80,000, leaving a balance sum of Rs.3,91,602 as on 30-9-1991.
4. The appellant filed a suit for recovery of remaining loan in the Court of District Judge, South Karachi.
5. The respondents were served by substituted service on 11-11-1991, but failed to appear before the lower Court, and were declared ex parte. The learned District Judge South, vide his judgment, allowed the decree to the extent of Rs.2,70,000 being principal amount but disallowed the remaining amount which constituted mark-up, hence this appeal.
6. In this Court also respondents Nos. l to 5 were served by the bailiff. Respondent No.6 was served through District Judge, Okara but none of them appeared in this Court. Notice of hearing was also sent to the respondents by Registered Post, but none appeared on the date of hearing. I have heard the arguments of the learned Advocate for the appellant. He has argued that in view of para. 4 of the loan agreement the respondents are liable to pay mark-up at the rate of Re.0.43 per thousand per day to the appellant.
7. Reasons for disallowing mark-up is in para. 9 of the impugned judgment. Para. 9 of the impugned judgment is given below:-- "9. Though in the agreement that has been attached with the plaint according to which the plaintiff has claimed mark-up/interest at the rate of Re.0.34 per thousand per day, which I am not inclined to allow, keeping in view the destruction suffered by the agriculturist in Punjab. I, therefore, decree to suit for the amount of Rs.2,70,000 against the defendants jointly and severally, with costs of this suit but the prayer regarding the interest/mark-up is not allowed. "
8. The learned District Judge, South, has not given any legal of valid reasons for disallowing the interest/mark-up. Respondents did not lead any evidence to show if they suffered any loss.
Learned Judge's personal view that "agriculturist suffered destruction in Punjab" is no ground for disallowing the mark-up. Mark-up has been agreed between the parties. Appellant is entitled to receive the same. In view of the above I allow the appeal and modify the decree accordingly. I also allow remaining mark-up to be paid up to the date of payment of decretal amount. Appeal allowed with costs.