This is an application filed by defendants Nos.1, 2, 5, 6, 7 and 8 for leave to defend the suit filed by the plaintiff for recovery of Rs.77,138,911, liquidated damages of Rs.15,427,782 and for sale of mortgaged properties and pledged shares. On 21-1-2000, when the matter came up for hearing Mr. Manji learned counsel for the aforesaid defendants sought time to verify the statement of Accounts and submitted that if no discrepancy was found in the same, he would not file any rejoinder. Today, he conceded that the Accounts were in order except a debit of Rs.47,006 alleged to have been paid to E.F.U. on 27-3-1990. He did not advance any other argument for leave to defend. Mr. A.H. Mirza, learned counsel for the plaintiff states that he has no objection, if a sum of Rs.47,006 is deducted from the plaintiff's claim as it is not shown in the Statement of Account.
Consequently the plaintiff's claim shall stand reduced by Rs.47,006. The plaintiff has also claimed liquidated damages and mark-up for the cushion period of 210 days, which cannot be allowed under the law. In view of the above position plaintiff's suit is decreed jointly and severally as follows:--
(a) Judgment and decree against. defendants Nos.1, 2, 5, 6, 7 and 8 in the sum of Rs.77,091,905 together with mark-up at the rate of Rs.0.50 per thousand per day from the date of suit till realization. (The rate of mark-up is not disputed by Mr. Manji).
(b) Final mortgage decree for sale of the mortgaged property.
(c) Decree for sale of the pledged shares.
(d) Costs of the suit.
2. Mr. Amer Raza Naqvi, raised several grounds in defence, including, among others, that the guarantees were not signed by his client and that his signatures were fabricated. The signatures on a few guarantees on comparison with the admitted signature of defendant No.3, prima facie, appear to be different. Mr. A.H. Mirza concedes to this position. Accordingly, the application for leave to defend the suit is granted. Defendant No.3 is allowed three weeks to file the written statement.
3. In view of .the orders passed above in C.M.A. No.9593 of 1999, Mr. Naqvi does not press this application, which is accordingly dismissed as withdrawn.
4. No application for leave to defend has been filed by defendant No.4. Consequently, the plaintiff's claim against defendant No.4 is decreed in the same terms as against defendants Nos.1, 2, 5, 6, 7 and 8.