P L D 1988 Karachi 334 (PLP)

SAJJAD ALI SHAH, J.‑‑ Mr.Abdul Sattar Pingar, Advocate, has filed this first appeal under section 12 of the Banking Companies (Recovery of Loans) Ordinance, 1979 in which he had prayed that operation of the impugned judgment and decree dated 6‑10‑1986 and 28‑7‑1987 respectively passed in Suit No.351/84 be set aside and grant any further relief or reliefs that may be deemed fit and proper in the circumstances of the case. Briefly stated the relevant facts giving rise to this appeal are that respondent No.1 National bank of Pakistan before us filed a suit as plaintiff for recovery of Ks.5,79,Z18.47 against defendants No.1 Abdullah Arain (appellant before us), (2) Haji Ghulam Nabi Shah, (3) Hussain Bux Leghari and (4) Choudhry Noor Hussain before the Special Court (Banking) for Sind at Karachi. According to the plaint defendant No.1 applied for grant of facility of loan for the purpose of purchasing of seeds, 'fertilizers insecticides, 2 tractors, 3 lift engines and 2 electric motors to be utilised for production and development of the agricultural land on lease with him. Above loan was sanctioned against the following securities: ‑‑ (a) Registered/ Collateral Registered mortgage of: (i) Bungalow No.16 A‑Block D Unit No.6 Shah Latifabad Hyderabad owned by the applicant /borrower (defendant No.1). (ii) Bungalow No.17 A Block D Unit No.6 Shah Latifabad Hyderabad owned by guarantee of defendant No.l. (b) Guarantees of: (i) Haji Ghulam Nabi Shah s/o Juman Shah (defendant No.2) worth Rs.8,00,000. (ii) Hussain Bux Leghari s/o Ahmed Khan (defendant No.3) worth Rs.2,75,000. (c) Hypothecation of: (l) Standing crop 2. 2 tractors, with implements, 3 lift engines and 2 electric motors, Subsequently at the request of defendant No.1 cash credit limit was enhanced from Rs. 2,50, 000 to Rs. 3,50, 000 on the same terms and conditions as envisaged in the sanction letter dated 20‑8‑1975 subject to additional mortgage charge of Rs.1,00,000 and obtaining necessary documents from the borrower/his guarantors. The above loan was sanctioned subject to the levy and payment of interest of 3% above Bank rate minimum 12% per annum with quarterly rests with Bank's right reserved to enhance, change or modify their rate of interest and the defendant No.1 was required to pay the loan in half‑yearly equal instalments plus interest commencing from 15‑6‑1976 within next 5 years. The guarantors viz. the defendants No.2 and 3 were also jointly and severally liable in this behalf. This suit was filed on 3‑7‑1984 in which defendant No.1 " was principal debtor and defendants 2 and 3‑were guarantors. It is alleged that defendant No.4 has purchased property in question with full knowledge of the fact that charge on it was created in favour of plaintiff. In the suit defendants 2 to 4 remained ex parte. Defendant No.1 contested the suit. On 22‑11‑1984 defendant No.1 in the suit filed an application under Order 37, Rule 2 (2), C.P.C. for leave to defend the suit and this application was dismissed for non‑prosecution on 24‑8‑1986 after about 20 months. In the record before us has been filed certified copy of order sheet from the record of suit proceedings which start from 11‑8‑1985. On that day none was present for defendant. On the next date i.e. 5‑9‑1985 Counsel for defendant sent an application for grant of an adjournment. On next date i.e. 23‑11‑1985 plaintiff's Counsel was present but defendant No.1 made application for adjournment which was granted. On the next date i.e. 21‑12‑1985 plaintiffs Counsel sent application for adjournment. On 26‑1‑1986 Mr. Ghulam Rabbani, Advocate for plaintiff was present but Mr. Ghulam Ali Khokhar, Advocate sent application for adjournment which was granted. On the next date i.e. Z3‑2‑1986 both the learned counsel for the parties were present. Defendants' counsel requested for adjournment to approach plaintiff for settlement. Case was put off to 24‑3‑1986 for the same purpose. On the next (late Mr. Ghulam Rabbani, Advocate was present for the plaintiff but learned Advocate for defendant No.1 sent application for grant of adjournment which was granted. Case was put off to 26‑4‑1986. On the next date also counsel for the plaintiff was present but Mr. Ghulam Ali, Advocate for defendant sent application for grant of adjournment which was granted. On the next date i.e. 15‑8‑1986 Counsel for the plaintiff was present but Advocate for the defendant No.1 sent application for grant of adjournment. On the next date i.e. 20‑7‑1986 Junior of Mr. Ghulam Rabbani, Advocate for plaintiff was present and requested ,for adjournment. Defendant and his Counsel were called absent. Case was put off to 24‑8‑1986. On the next date i.e. 24‑8‑1986 Mr. Ghulam Rabbani, Advocate was present for the plaintiff. Defendant No.1 and his Advocate were called absent. Application Ex.4 was dismissed for non‑ prosecution. Order was passed on it. Thereafter on 6‑10‑1986 'Suit was decreed and preliminary decree was ordered to be drawn which accordingly was prepared on 28‑7‑1987. It would be pertinent to point out tit‑at application for leave to defend the suit was dismissed for non‑ prosecution on 24‑8‑1986 and thereafter there was complete lull and no attempt was made by the defendant No.1 or his Counsel to find out as to what had happened in Suit. After about a period of 6 months from 24‑8‑1986 three applications were filed in the trial Court on 25‑2‑1987. First application was u/s 5 of the Limitation Act, 1908 read with Section 151 CPC. Second application dated 25‑2‑1987 was filed u/0 37 Rule (4) read with Order 9 rule 13 CPC and third application dated 25‑2‑1987 was filed u/s 12(2) C.P.C. Learned trial Judge has dismissed all these 3 applications after assigning very valid and cogent grounds. Application u/0 37 Rule 4 C.P.C. is without dispute time‑barred for the reason that application u/0 37 Rule 3 C.P.C. for permission to defend the suit was dismissed for non‑prosecution on 24‑8‑1986 and against thati no step was taken to make a request for having that application~ restored which was dismissed for non‑prosecution. Subsequently decree was passed on 6‑10‑1987 and application u/0 37 Rule 4 C.P.C. has been filed on 25‑2‑1987. Filing of application u/s 5 of the Limitation Act clearly proves beyond doubt that application u/0 37 Rule 4 CPC is indisputably time‑barred. Article 164 of the Limitation Act provides 30 days time to the defendant to file application for setting aside ex parte decree. These 30 days start from the date of the decree in the instant case because defendant had participated in the proceedings before the trial court. In the circumstances Section 5 of the Limitation Act will not apply as rightly held by the learned trial Judge. Medical Certificate which is issued by M.B.B.S. Doctor is undated only show that Abdullah s/o Haji Rehmatullah Arain has been under the treatment of the doctor since 1984 for severe heart attack and he has been advised, complete rest. This certificate does not show that defendant was in such serious condition that he could not call his Counsel to his house for consultation nor could he speak to him on telephone. Some persons from the family could have been, sent to enquire front the Advocate about the progress of the case. We are not satisfied with the reasons stated by the defendant in suit and in his affidavit in support of application u/s 5 of the Limitation Act. Application u/s 5 of the Limitation Act has been rightly dismissed. Application under Order XXXVII Rule 4 C.P.C. Stand has been taken by the defendant No.1 that counter -affidavit was not supplied by plaintiff's hence application cannot he dismissed, On the other hand record shows that defendant No. One's Counsel Haji Muhammad Aslam was supplied counter‑affidavit by plaintiff junior Counsel Shahnullah Abbasi, at Hyderabad and the latter has sworn his personal affidavit to this effect. Against this 134 assertion there is no affidavit in rebuttal. It is held by the learned trial Judge that even otherwise on the merits defendant No.1 has got no case because there are signatures on all loan documents which have not been denied. Loan was advanced against registered mort gage of Bungalow. Suit was within time and the time will run from the date of registration i.e 1‑10‑1975 and 20‑11‑1975. Application ,being without merits has been rightly dismissed. Order on application u/S 12 (2) CPC. So far the allegation of fraud is concerned burden lies upon the party who makes such averment. Defendant No.1 in the suit has failed miserably to prove that either fraud was committed or there was misrepresentation of facts. in the plaint aft the facts are given in correct detail. Plaintiff in the suit has admitted in paragraph 91 that defendant No.1 deposited an amount of Rs.90,000 on 29‑10‑1.980. He also furnished an undertaking on 29‑10‑1980. His guarantors also assented to aforesaid arrangement and in‑ pursuance whereof, subsequently they also executed revival letter confirming above arrangement. Admission is made in para 10 of the plaint that the defendant No.1 paid Rs.1,60,000 on 18‑11‑1982 and Rs.1,10,000 on 20‑6‑1982. In paragraph 11 of the plaint it is mentioned that plaintiff addressed a letter dated 26‑9‑1983 to defendant No.1 directing him to arrange immediately repayment of Rs.2,21,855.77 so that his case for considering his request for writing off the remaining outstanding balance be finalised and in the alternative it was communicated to defendant No.1 that otherwise the plaintiff bank shall have no option but to proceed legally against him and his guarantors to enforce recovery of the plaintiff bank Its dues. A photo copy of the aforementioned letter dated 26‑9‑1983 is enclosed as an Annexure XV, In paragraph 12 of the plaint it is stated that defendant No.1 did not pay any amount despite above‑mentioned letter to him and defendants Nos. 1 to 3 also failed to pay, hence the necessity of filing this suit, In paragraph 14 of the plaint it is stated that the cause of action for filing of this suit accrued to the plaintiff against the defendant Nos.1 to.3. Firstly in the second quarter of the year 1475 when they failed to pay, deposit or tender the first instalment of loan plus interest accrued thereupon and then when after approaches, demands and issuance of notice dated 26‑9‑1983 to the defendant No.1, defendant failed to pay/deposit or tender the outstanding amount of loan plus interest in lump sum and the defendant No.1 has sold out. the Bungalow mentioned in foregoing paragraphs to the defendant No.4 and finally the cause of action has arisen it. the matter when the defendants Nos. 1 to 3 after notice dated 28th June 1984 (through telegrams) have failed to pay full amount outstanding against them which is recurring day to day tin this day within the jurisdiction of Court. In paragraph, 15 of the plaint it is stated that for the purpose of court‑fee the suit is valued at Rs.5,79,218.47 on which the court‑fees worth Rs.15,000 have been affixed. In the circumstances we are of the view that no fraud has been committed neither there is misrepresentation of the facts. The E application is also rightly dismissed by the learned trial Judge for valid and cogent reasons. For the facts and reasons mentioned above we uphold the impugned orders and dismiss this appeal in limine. M.Y.H. /A‑263/K Appeal dismissed.