C. M. No,230-B of 2003 ' Through this C.M., learned counsel for contesting defendant seeks permission of the Court to bring on record photo-copies of proceedings/evidence undertaken in C.O.S. No,59 of 2000, which has been stayed on applicability of provisions of Section 316 of Companies Ordinance, 1984. The only objection raised by the learned counsel for the plaintiff is that documents sought to be placed on record are photo copies and not certified copies.
2. Subject to objection above raised, these documents, for the present, are allowed to be placed on record in acceptance of this application, subject to all just and legal exceptions. Learned counsel for the contesting defendant No,5 undertakes to file certified copies within a period of 15 days. P.L.A.
No,48-B of 2000.
P.L.A. No,6-B of 2003.
3. In this suit for recovery, the only contesting defendant now left is defendant No,5 namely Waqar Haider Butt and the suit thus proceeds against this defendant. Upon institution of the suit and receipt of summons, necessary application for leave to defend bearing No,48-B of 2000 was filed by defendant No,5. However, upon promulgation of Financial Institutions (Recovery of Finances)
Ordinance, 2001, amended P.L.A. No,6-B of 2003 was filed in terms of Section 10(12) of Financial Institutions (Recovery of Finances) Ordinance, 2001.
4. The contention raised in the application is that petitioner/defendant No,5 never ever signed any documents namely guarantees, sponsors undertaking or even forms showing his signatures at the time of incorporation of the company and subsequent thereto. And that he had never any association or connection with the company and was neither a share-holder nor a director of the company. His signatures on all the documents were forged. A contesting reply thereto was filed by the plaintiff-Bank, of course supporting the documents filed by the plaintiff alongwith the plaint.
5. It is note-worthy that contesting defendant/ applicant namely Waqar Haider Butt had filed another suit bearing C.O.S. No,59 of 2001 titled Waqar Haider Butt v. H.B.L. For declaration, cancellation of documents and for recovery of damages against plaintiff-Bank. In the said suit written statement was submitted by the plaintiff to contest the same. Issues were framed, which related to contested questions and litigated controversy raised in the present PLAs by the parties.
In the said suit, evidence of Waqar Haider Butt as well as that of plaintiff-Bank had been completed. At that stage, it was discovered that Pearl Fabrics Limited i.e. The company, which was a defendant in the said suit, had been ordered to be wound up. As such, the said suit was stayed in terms of Section 316 of the Companies Ordinance, 1984 with the result that the same was consigned to record to be resurrected on leave to proceed therewith by the learned Company Judge. Copies of the evidence recorded in the said suit have been brought on the record of the present case in C.M. No,230-B of 2003. Learned counsel for the plaintiff-Bank admits the correctness of the copies of evidence recorded in the said suit.
6. It is also noted that even in the present case, the contesting defendant was directed to get his statement recorded prior to consideration of his PLAs. In the said statement as well, applicant/contesting defendant No,5 raised the same issues regarding non-execution and non- signatures of the documents. He categorically denied being a share-holder or director of the company and also expressly denied having executed and signed personal guarantees or sponsors undertaking to be sued as a guarantor by the plaintiff-Bank. This statement was recorded in the presence of learned counsel for the plaintiff, who did not seek to cross-examine defendant No,5 at that stage. Objection has been raised by the learned counsel for the plaintiff that he was not given any opportunity of cross-examination, wherefor, the statement cannot be relied upon by this Court.
7, I have again examined order dated 25-10-2002 and statement of defendant No,5 made on the said date. The statement is under oath. He has stated that guarantee dated 21-51990 and sponsors undertaking of the same date do not bear his signatures. Order dated 25-10-2002 shows that Mr. Zahid Hamid, Advocate was present on behalf of the plaintiff and he made no request to cross- examine the defendant No,5 whose statement was only recorded at the preliminary stage for determining the controverted question at the stage of PLA. Since lengthy proceedings have been undertaken in the present suit as well as in C.O.S. No,59 of 2000 and evidence has been recorded only on the question of signatures and executibility of the documents, therefore, I am of the opinion that applicant/defendant No,5 is entitled to leave to defend the suit unconditionally.
8. At this stage, learned counsel for the applicant/ defendant No,5 states that he would like to file a separate written statement and the learned counsel for plaintiff states that he would also like to file an application to refer the matter to expert for a report on signatures of defendant No,5. In view of what has been held above, defendant No,5 is allowed to file a written statement. It shall of course be open to plaintiff-Bank to make an application for reference of the signatures for expert's opinion after issues are framed and case is set down for evidence. Both the PLAs are accepted and disposed of in above terms.
9. To come up for written statement on 19-5-2003. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.