1. ' Through this application, the defendants have sought deletion of defendants Nos.2 to 7 from the array of defendants besides grant of leave to defend the proceedings in favour of defendant No,1. It is urged by Ch. Muhammad Jameel that the plaintiff has wrongly charged mark-up beyond the agreed period and at a rate in excess of 48 paisa per thousand per day, which was the settled rate.
2. It is further urged that the plaintiff has claimed liquidated damages which cannot be awarded in view of Section 73 of the Contract Act. According to the learned counsel for the defendants the documents of title in relation to the property allegedly mortgaged with the plaintiff had not been deposited with the result that no equitable mortgage came into existence. It is lastly contended that a sum of Rs,10,000,000 paid back by the defendant No,1 has not been accounted for by the plaintiff.
3. ' The learned counsel for the plaintiff submits that the various contentions raised by Ch. Muhammad Jameel do not warrant regular trial and the various issues can be settled at this stage with9ut going into evidence. The learned counsel submits that the mark-up has to be charged for the period stipulated under the sanction advice and the amount due as mark-up can conveniently be recalculated. The amounts repaid by the defendants can also be verified after product ion of necessary vouchers and accounted for. As regards liquidated damages, however, the learned counsel submits that the principles laid down by a Division Bench of this Court in Habib Bank Ltd. v.
4. Messrs Farooq Compost Fertilizer Corporation Ltd. And 4 others 1993 M LD 1571 is binding on this Court. The claim for liquidated damages can, therefore, be excluded from the claim amount.
5. In my view, the submission made by Mr. Muhammad Zubair Qureshi is justified and no serious question for trial appears to have been raised by the defendants. As regards defendants Nos.2 to 7, the learned counsel for the plaintiff concedes that they are not necessary party to the present proceedings and have been joined on account of their being Directors. In the circumstances, the defendants Nos.2 to 7 are struck-off from the array of defendants and the application for leave to defend filed by the defendants is dismissed.
6. ' As a result of dismissal of the application, I have examined the plaint and the documents filed in support thereof. The various documents had admittedly been signed and executed by the defendants. From the sanction advice, it appears that the amount of outstanding liability was determined as Rs,63,104,048.85 on the date of approval of sanction advice. Although the agreement of finance executed thereafter on 22-10-1995 mentions the sale price agreed between the parties in relation to the running finance account as Rs,62,000,000 and the purchase price as Rs,79,112,000, it is stated by the learned counsel for the plaintiff that his client has confined the claim to the actual amount availed by the defendants. It is rightly pointed out by Mr. Muhammad Zubair Qureshi that the figure of outstanding dues, mentioned in the statement of account has not been disputed by the defendants except to the extent of claim for adjustment of Rs,10,000,000, which is said to have been repaid in addition to the dispute about mark-up amount. In the circumstances. I find it necessary and equitable to direct the plaintiff to file revised statement of account showing therein if the sum of Rs,10,000,000 allegedly repaid by the defendants had been adjusted from the amount shown outstanding in the statement of account. The plaintiff shall also charge markup in the revised statement of account upto the agreed period and at the agreed rate. Let such statement be filed within two days from today with advance copy to the learned counsel for the defendants. Put up on 14-5-1998.