This is a suit for recovery of loans and outstanding against the defendants.
3. The plaintiff at the request of the defendants entered into an agreement on 28-6-1990 with defendant No,1 for financing their business and establishing an industry. The defendant No,1 were facilitated with the loan of Rs,169.000.000 (Rupees one hundred sixty-nine million only) being the purchased price and at the marked-up price of Rs, 507,515,638 (Rupees five hundred seven million five hundred fifteen thousands and six hundred thirty-eight only); the defendant No,1 has availed the said finances, the copy of accounts as required under section 9(1) of the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act (XV of 1997) is placed before the Court. In order to secure the repayment of the availed finances and dues under the agreement dated 28-6- 1990 the defendant executed following documents in favour of the plaintiff:---
(a) Agreement No. l Karachi dated 28-6-1990;
(b) Undertaking to create mortgaged and assignment of Mining Lease.Karachi dated 25-9-1990;
(c) Memorandum of deposit of title deeds.Karachi dated 25-9-1990;
(d) Deed of floating charges. Karachi dated 31-7-1990;
(e) Letter of Hypothecation. Karachi dated 31-7-1990;
(f) Certificate of registration of mortgage.Karachi, dated 26-8-1990;
(g) Seven (7) Pledges of shares. Karachi dated 11-8-1990;
(h) Guarantee Karachi, dated 28-6-1990;
(i) Irrevocable General Power of Attorney.Karachi, dated 27-9-1990;
(j) Certificate of Registration. Karachi, dated 13-10-1992;
(k) Undertaking to create mortgagKarachi, dated 7-10-1992;
(l) Memorandum of deposit of title deeds.Karachi, dated 7-10-1992;
(m) Certificate of registration of mortgage.Karachi, dated 2-10-1990;
(n) Irrevocable General Power of Attorney.Karachi, dated 20-10-1992.
3. On 7-11-1993 the parties entered into a supplementary agreement which was to be effective from 14-12-1992. The copy of agreement, dated 7-11-1993 is placed before the Court; the defendants Nos.2 to 8 executed personal guarantee on 7-11-1993; and demand promissory note dated 7-11- 1993 was executed by the defendant No,
1. The copies of the personal guarantee and demand promissory note are produced in Court. The defendant No,2 in order to secure repayment of the finances under supplementary agreement, dated 7-11-1993 executed the following documents in favour of the plaintiff:--
(a) Supplement agreement dated 7-11-1993
(b) Guarantee dated 7-11-1993 dated 7-11-1993
(c) Demand promissory note dated 7-11-1993
(d) 2 agreements to pledge of shares dated 18-9-1995 (for supplement agreement Nos.1(a) and (b)).dated 18-9-1995
4. The defendant No,1 failed to make payment according to the schedules of both agreements, dated 28-6-1990 and 7-11-1993 hereinafter referred to as agreement No,1 and agreement No,1-A respectively. The supplementary agreement No,1-A, dated 7-11-1993 was further supplemented by another supplementary agreement, dated 29-12-1994, hereinafter referred to as agreement No,1-B; and repayment as per schedule was to be effective from 19-7-1994. The copy of the supplementary agreement No,1-B dated 29-12-1994 was produced in Court. The defendants Nos. 2 to 8 have given personal guarantee dated 3-1-1995 in favour of the plaintiff; photostat thereof is produced in Court.
The defendant No,1 in order to secure repayment of the availed finance and all other dues under the agreement No, 1-B, dated 29-12-1994 executed the following documents in favour of the plaintiff:-
(a) Supplement agreement dated 29-12-1994
(b) Guarantee dated 3-1-1995
(c) 2 agreements to pledge of shares dated 18-9-1995 (for supplement agreement Nos.1(a) and (b)).
5. The defendant No,1 failed to make payment according to the schedule in relation to the agreements Nos.1, 1-A and 1-B and thereby committed breach of the terms of the agreements.
6. On 5-5-1994 the plaintiff entered into an agreement with defendant No,1 for their business in respect of purchase of raw material/furnished goods/spares/ machinery etc. Copy of such agreement is produced in Court. The defendant No,1 was given the loan facility of Rs,35,000,000 (Rupees thirty-five million only) being the purchased price and Rs, 43,750,000 (Rupees forty-three million seven hundred fifty thousand only) as mark-up price in accordance with the terms and conditions of the said agreement, dated 5-5-1993, hereinafter referred to as the agreement No, 2.
The defendant No,1 availed the facility of finances and a statement of account to that effect is produced in Court. The defendant No,1 to secure repayment of the availed finances and all other dues under the agreement No,2 executed in favour of the plaintiff:--
(a) Agreement No.2 Karachi,dated 5-5-1994;
(b) Demand Promissory Note dated 3-4-1994
(c) Undertaking to deposit all sale proceeds with NDFCKarachi dated 4-5-1994;
(d) Letter of Hypothecation Karachi dated 5-5-1994;
(e) Certificate of registration of mortgageKarachi, dated 5-5-1994;
(f) Agreement of lien on receivableKarachi dated 5-5-1994;
(g) Personal Guarantee Karachi dated 5-5-1994;
(h) Encumbrance Certificate Karachi, dated 25-4-1994.
The copies of promissory note, dated 3-4-1994 and personal guarantee, dated 5-5-1994 have been produced in Court. The defendant No,1 failed to make payment according to the schedule in relation to the loan agreement and committed breach thereof. The plaintiff served upon the defendant legal notice from 13-4-2000. A copy of such notice is produced in Court. The plaintiff claims the following amount:-- AGREEMENT No,1 Marked-up price Rs,507.377.272.43 Project monitoring fee Rs,2,181.144.82 Commitment fee Rs,Nil.
Other amounts, fees, charges and expensesRs,120.000 C.E.D. Rs,4,069,501.31.
Total Rs,513,747,918.56 Liquidated damages (Calculated @ 20% on the total payable amount.Rs, 102,749,583.71 Rs, 616,497,502.27 AGREEMENT No,2 Marked-up price Rs,35,684.880.00 Project moinitoring fee Rs, Nil.
Commitment Fee Rs, Nil.
Other amounts, fees, charges, expenses and security chages.Rs, 979,200.00 C.E.D. Rs,699 984.00 Total Rs,37,889,064.00 Liquidated damages (calculated 0 20% on the total payable amount).Rs,7,577,812.80 Rs,45,466,876.80 Grand total: Rs,661,964,379.07
7. After admission of the suit the notices were issued to all the defendants through the prescribed procedure and the defendants were served accordingly. It appears from the record that no one appeared on behalf of the defendants nor any application under section 10, Act XV of 1997 for leave to defend has been preferred by any of the defendant and the matter has been placed before the Court for further proceedings.
8. Heard Mr. Zahid Jamil, Advocate for plaintiff and perused the statements made in the plaint and also the documents submitted therewith. In the absence of any rebuttal there is no reason for not relying upon the statement made in the plaint and documents placed therewith except the claim in respect of liquidated damages in view of section 73 of the Contract Act as well as the judgment in the case of Habib Bank Limited v. Messrs Farooq Compost Fertilizer Corporation Ltd. And 4 others (1993 M LD 1571).
9. In the circumstances, the suit is decreed against the defendants jointly as well as severally in the sum of Rs,551,636,982.56 with mark-up at the agreed rate from the date of institution of suit till its realization. The plaintiff shall also be entitled for costs of the proceedings.
10. The learned counsel for the plaintiff has moved an application under section 18 of Act XV of 1997 for attachment of the properties mortgaged with the plaintiff. Such properties have been listed in the application. Application is allowed and the properties mentioned therein are ordered to be attached under section 18 of Act XV of 1997. The office is directed to assign C.M.A. Number to the application under section 18 of Act XV of 1997.