1. ' The application listed at Serial No,1 preferred under Order XXXVII, Rule 3, C.P.C. By the defendants Nos.1 and 2 seeking unconditional leave to defend the suit.
2. ' Mr.Rizwan Ahmed Siddiqui appearing on behalf of defendants Nos.1 and 2 has referred to Sanction Letter dated 23-6-1990 where under facilities of secured overdraft to the extent of US $ 50,000, L/C (SIGHT) to the extent of US $ 300,000, loan against Trust Receipt (L.T.R.) to the extent of US $ 150,000 and Foreign Bills Purchase Limit (F.B.P.) to the extent of US $ 100,000 were granted carrying interest at the rate of 4% above 3 months LIBOR. It is urged by the learned counsel that the statements of accounts in respect of the 4 accounts show that the plaintiff has claimed interest for the period prior to the Sanction Advice and various entries of earlier dates are shown. On the basis of such assertion, it is urged that the statements of accounts are incorrect and the defendants Nos. 1 and 2 are entitled to grant of leave. Reliance in this behalf is placed on judgment in M/s. Ali Match Industries Ltd. And 3 others v. Industrial Development Bank of Pakistan 1997 SCM R 943.. It is further urged by the learned counsel for the defendants Nos.1 and 2 that the suit is barred by limitation having been filed beyond 3 years from the date of acknowledgment of liabilities. According to the learned counsel, the last acknowledgment of liability is contained in the letter dated 10-1-1993 and the present suit having been filed on 10-1-1996 is barred by limitation. It is next urged by Mr.Siddiqui that the defendant No,4 had signed various Trust Receipts as attorney of defendant No,3 and the defendants Nos.1 and 2 were not bound by the acts of defendant No,4.
3. ' Placed at Serial Nos.2 and 3 are the applications filed on behalf of defendants Nos.3 and 4. The first of these applications is filed under section 5 of the Limitation Act whereas the second application is filed for grant of leave to defend the proceedings under Order XXXVII, Rule 3, C.P.C.
4. Both the applications were filed on 10-3-1996. In support of the first application, preferred under section 5 of the Limitation Act, it is .Urged by Mr. Lodhi that the defendant No,4 who was attorney of defendant No,3, on 4-3-1996 had come to know from one Wasim Khalil about publication of summons relating to the present proceedings in the daily newspaper. On the next day, the defendant No,4 engaged a counsel and preferred application for grant of time to file formal application under Order XXXVII, Rule 3, C.P.C. Therefore, the defendants Nos.3 and 4 upon gaining knowledge about institution of the present proceedings had not lost any time and had applied for grant of leave within the time permissible in law which according to Mr. Lodhi had commenced from 4-3-1996. It is further urged that as against defendants Nos.3 and 4, time would start running from delivery of copy of plaint and its Annexures which have not been .Supplied to them as yet.
5. Reliance in this respect is placed on judgments in the cases of M/s. United Bank Limited v. Ali Habib & Company 1988 CLC 292 and Cotton Export Corporation of Pakistan (Pvt.) Ltd. v. M/s. Nagina Cotton Industries Ginning, Pressing and Oil Mills and 6 others 1993 CLC 2217 wherein it is held that the time for filing application under Order XXXVII, Rule 3, C.P.C. Would start running after copy of the plaint and its Annexures is supplied. On merits, it is urged by Mr. Lodhi that the partnership between the defendants Nos.2 and 3 was dissolved on 17-3-1994 and all the liabilities of the defendant No,1 were taken over by the defendant No,2 from the date of dissolution.. To substantiate the factum of dissolution, copy of Arbitrator's Award has been filed showing that the partnership was dissolved through intervention of a sole arbitrator. It is, however, conceded that the award was not filed in any Court of law for being made rule of the Court.
6. ' In reply, Mr. Chundrigar, appearing for the plaintiff, has urged that the defendant No,1 was granted various facilities even prior to the Sanction Letter dated 23-6-1990 and the liability under the various accounts was specifically acknowledged by the defendant No,4 acting as attorney of defendants Nos.2 and 3 after the sanction as above. The learned counsel in order to substantiate his contention has referred to three acknowledgments, all dated 31-12-1992, pertaining to the over- draft account whereby the defendant No,4 had acknowledged liability to the extent of US $ 63,877.19. I have been shown corresponding entry dated 30-12-1992 for such amount in the statement of account and both the figures tally which each other. The acknowledgment in relation to F.B.P. Account is for the Sum of US $ 99,712 and the corresponding entry dated 30-12-1991 is found in the statement of account filed as Annexure Z-15 with the plaint. Next acknowledgment pertains to L.T.R. Account in the sum of US $ 110339.84 which is substantiated by corresponding entry dated 7-1-1992 in the statement of account. These acknowledgments are of dates subsequent to the sanction letter and on such basis it is urged that the argument of Mr. Rizwan Ahmed Siddiqui in relation to interest having been charged prior to the Sanction Letter, loses force and is to be discarded. The learned counsel has further urged that mere assertion that statement of account is incorrect without pin-pointing the flaws cannot be believed since the statements of account are prepared on the basis of books regularly maintained by the plaintiff-bank, and therefore, do enjoy benefit under the Bankers' Books of Evidence Act. The objections, it is urged by the learned counsel must be definite and a defendant cannot be permitted to defend the proceedings on the basis of illusory contentions. It is pointed out by Mr. Chundrigar that Mr. Rizwan Ahmed Siddiqui has referred to the contentions of the counsel recorded in the leave granting order cited by him in the case of M/s. Ali Match Industries Ltd. (supra). The learned counsel for the plaintiff, therefore, submits that no material has been shown which could be termed plausible or one raising a triable issue.
7. ' As regards question of limitation, it is urged by the learned counsel for the plaintiff that the present suit was filed on 10-1-1996 which was the opening day after Winter holidays. According to Mr. Chundrigar, although the letter dated 11-5-1993 received by the plaintiff from defendant No,1 (signed by the defendant No,4) constitutes acknowledgment in terms of section 19 of the Limitation Act, by computing the period of limitation with effect from 10-1-1993 which is the admitted date of acknowledgment, the present suit is within time. The contention of the learned counsel for plaintiff is not without force and nothing has been shown to rebut the same.
8. ' As regards the contention that the defendant No,4 alone had dealings with the plaintiff-bank and the defendants Nos.1 and 2 did not incur any liability, suffice to observe that the defendant No,4 has admitted to have acted as attorney of defendant No,3 who was a partner of defendant No,2. The defence urged on behalf of defendant No,3 to the effect that all the liabilities in relation to the partnership business were taken over by defendant No,2 negates the claim urged on behalf of defendants Nos.1 and 2 that the dealing's undertaken by the defendant No,4 were unauthorized.
9. While it is true that the plaintiff has not produced any material showing that the defendant No,4 was the authorized signatory of the partnership concern, the above stated position taken by the defendants Nos.3 and 4 supports the plaintiff's case leading to the conclusion that the defendant No,4 had acted as the authorized attorney of defendant No,3 who was partner of defendant No,2.
10. Evidently a partner acts as agent of other partner(s) and any liability incurred by former effectively binds the later., Such principle is evident and is firmly established on the basis of section 18 of the Partnership Act. Consequently, the defence raised by the defendants. Nos.1 and 2 that they cannot be held liable for the acts of defendant No,4 lacks confidence.
11. ' As to the contention urged by Mr. Lodhi that the limitation for filing application for leave to defend would start only after copy of the plaint and its Annexures are supplied, it is sufficient to refer from the dictum laid down in the case of M/s. Ahmed Autos and another v. Allied Bank of Pakistan Ltd.
12. PLD 1990 SC 497 which is as follows: "6. There is no doubt that in the above form it has been stated that a copy of the plaint is annexed but in our view the factum that a copy of plaint cannot be enclosed for effecting service by publication, does not in any way affect the validity of service as it is one of the modes of service provided for under Rules 8."
13. ' The provisions of the Banking Companies (Recovery, of Loans) Ordinance, 1979 had laid down special procedure for filing claims for recovery thereunder. A plaintiff is required to file in advance, copies of the plaint along with Annexures in the office which are sent for service through Bailiff. In the event of non-service through Bailiff, the copies are kept available in the office which can be collected by the defendants who are served through publication. In the present case, therefore, it was obligatory upon the defendants Nos.3 and 4 to collect the copies of the plaint and its Annexures; hence extension of time cannot be sought on the ground that copies of the plaint and its Annexures were not supplied. The service through publication in the present case was effected on 6-2-1996 and the application for grant of leave to defend the proceedings having been filed on 10-3-1996 is evidently barred by limitation. Even otherwise the only defence urged on behalf of the defendants Nos.3 and 4 regarding assumption of liabilities by defendant No,2 can hardly be termed plausible. It is conceded by defendants Nos.3 and 4 that the plaintiff bank did not accept the arrangement allegedly evolved between defendants Nos.2 and 3. Even dissolution of partnership though arbitrator's award unless made rule of the Court did not become effective. The defendants Nos.3 and 4 have not even cared to file affidavit of Wasim Khalil through whom the defendant No,4 had allegedly come to know about the publication of summons. The reasons offered in support of application under section 5 of the Limitation Act can hardly be termed sufficient. The application under section 5 of the Limitation Act, therefore is dismissed.
14. Consequently, the other application, Civil Miscellaneous Application No,1303 of 1996, filed under Order XXXVII, Rule 3, C.P.C: by defendants Nos.3 and 4 is also dismissed.
15. The defendants Nos. I and 2 having failed to raise any serious or plausible defence, their application, Civil Miscellaneous Application No,779 of 1996, is also dismissed.
16. ' As a result of dismissal of the leave applications, the contents of the plaint are to be deemed to have been admitted and the plaintiff is entitled to decree in terms of the prayer contained therein.
17. The amount claimed as outstanding in the plaint is supported by statements of accounts and the defendants are liable to pay the same. The plaintiff's suit, therefore, is decreed against the defendants Nos.1 to 4 jointly as well as severally in the sum of US $ 382,070.31 with interest at the rate of 11% per annum. As regards prayer for mortgage decree. The same is declined since the plaintiff has failed to show creation of mortgage by any of the defendants.