1. The matter has been put up for consideration of written statement filed by defendants Nos. l and 2.
2. The defendant No.7 and his counsel are called absent. The time now is 11-10 a.m. And written statement filed by him is discarded out of consideration for non-prosecution.
3. The suit has already been directed to proceed ex parte against defendants Nos.3 and 4 through order dated 1-10-1995.
4. Mr. M. Saleem Thepdawala, representing the defendant No.2, has urged that the plaintiff's claim in he present suit is primarily based on agreement dated 15-8-1985 filed as Annexure 'P-4' with the plaint. Under the agreement Messrs Sharyar Textile Mills was granted facility in the sum of Rs.40 million with buy-back price having been settled at Rs.52,420 million. The amount was repayable in lump sum on or before 31-12-1986. The said agreement was, admittedly, executed in pursuance of proper sanction accorded by the authorized officers of the plaintiff-Bank. Although the copy of Sanction Advice has not been produced, the rate of mark-up is ascertainable from entry, dated 30th June, 1985 contained at page 163 of the file. It is shown that the mark-up had been charged at the rate of 43 paisa per thousand per day. Such fact is not disputed by the learned counsel for the plaintiff who submits that the buy-back price, mentioned in the above--referred agreement dated 15-8-1985 was calculated at a higher rate keeping in view the increased rate of mark-up chargeable in the event of default in repayments. Mr. Muhammad Saleem contends that the agreements shown to have subsequently been executed between the parties were signed in blank and have been mis-utilized by the plaintiff-Bank. The learned counsel for the plaintiff was asked to verify if any sanction for the subsequent alleged renewals was accorded by the plaintiff-Bank. The answer, upon instructions from the officer of the plaintiff-Bank, who is present in Court today, is in the negative. The absence of any sanction for renewals, substantiates the assertion made by the learned counsel for the defendant No.2 that the various agreements alleged to have been executed by the parties were signed blank and no effect can, therefore, be given thereto. However, the plaintiff's case based on the agreement dated 15-8-1985 for the limit of Rs.10 million carrying mark-up at the rate of 43 paisa per thousand per day up to 31-12-1986, shown as expiry date in the said agreement, cannot be denied and disputed. The bifurcation of the facility in NICF Bledge Account and NICF Hypothecation Account for the limit of Rs.35 million and Rs.5 million-, respectively, does not have any material effect on the matter of liability. The plaintiff, after the above-referred expiry date i.e. 31-12-1986 cannot claim further mark-up on the basis of blank documents filled up un-authorisedly. The blank documents do enjoy some immunity by virtue of the contemporary law contained in section 17 of the Act XV of 1997, the obligation to fill up the documents reasonably and in terms of authority cannot be evaded. The plaintiff has failed to show if it had the authority to fill up the blanks in financing agreement charging mark-up continuously and for a period beyond the agreed date. Reverting to the contention of Mr. M. Saleem Thepdawala, I do not, however, find the same presenting any serious or bona fide dispute warranting grant of leave. It is an admitted position on record that the facility granted through agreement dated 15-8- 1985 was continuously availed even beyond the expiry date. The plaintiff can, therefore, claim recovery of amount which has remained outstanding in relation to the facility availed by Ms. Shahryear Textile Mills Limited on the basis of actual withdrawals and despites as are recorded in the statement of account. The effect of finding to the effect that the mark-up could not be charged beyond 31-12-1986 can, easily, be identified and the amount of mark-up charged beyond the said date can be excluded from the amount of claim. For such reason I do not find the above plea, raised in the written statement, worth being tried through evidence.
5. It is next contended by Mr. M. Saleem that the defendant No.2 had resigned from Directorship of Messrs Shahryar Textile Mills Limited and had communicated such resignation to the plaintiff-Bank through letter dated 29-9-1987 followed by some more correspondence which is annexed with the written statement. Similar correspondence addressed by the defendant No.2 and its effect was considered by me in Suit No. 22 of 994 and through order dated 2-6-1998 I had held that resignation from Directorship cannot absolve a guarantor from the liabilities undertaken under a guarantee unless the guarantee, itself was revoked in terms of section 130 of the Contract Act. In reaching such conclusion I had relied upon judgment reported in 1996 CLC 106 (UBL Shahryar Textile Mills) and 1987 CLC 1002 (HBL v. Cargo Despatch Co. Ltd. And others). I do not find any justification or reason to deviate from what has been held by me in the abovereferred order and the contention raised by Mr. Saleem, in this behalf, is repelled. No other contention having been raised on behalf of the defendant, the pleas, raised in the reply statement, are rejected.
6. I have examined the plaintiff's claim pursuant to rejection of the reply statement and finds that the claim contained in para.13 of the plaint includes mark-up beyond the agreed date and appears to have been calculated at a higher rate. As has been observed in relation to the reply statement filed by defendant No.2 the agreed rate of mark-up was 43 paisa per thousand per day and the same could be charged up to 31-12-1986. Beyond the said date, the plaintiff is entitled to the actual amount withdrawn by Messrs Shahryar Textile Mills Limited besides the charges lawfully levied including Central Excise Duty, Correspondence Charges and Muqadam Charges, if any, subject to production of valid vouchers evidencing the chargeability thereof. Let the plaintiff file a revised statement of account in terms of the order passed, today, within five days from today with advance copy to the learned counsel for defendant No.2. Put up on 12-11-1998, as suggested.
7. ORDER (12-11-1998)
8. Pursuant to order dated 6-11-1998, the plaintiff had filed revised statement of account, copy whereof was supplied to Mr. M. Saleem Thepdawala. No objections have been filed in relation to the revised statement of account wherein the various entries disputed by the defendant No.2 on the last date of hearing, have been explained. The various entries of mark-up contained in the statement of account which pertained to the period beyond the agreed date, have been deleted from the claim amount which, as per the revised statement, comes to Rs.53,891 million. The execution of the guarantee by the defendants is not disputed. In the circumstances, the plaintiff's suit is decreed against the defendants jointly as well as severally in the sum of Rs.53,891 million with mark-up at he rate of 43 paisa per thousand per day from the date of institution of suit till payment alongwith costs of the proceedings.