1989 PLP 2777 (MLD)

Saleem Saigal for Respondent. Date of bearing: 27th February, 1989. AKHTAR HASSAN, J.--This Regular First Appeal" impugns the preliminary decree dated the 18th of July, 1985, passed by the learned Special Judge Banking-1, Lahore.

2. The respondent-Bank brought the suit against the appellants-defendants for recovery of Rs.8,13,581.81 with future interest at 4 per cent per annum above bank rate till its realization. Appellant No.l Sh. Chiragh Din allegedly opened, maintained and operated an account with the respondent-Bank in the name and style of his business concern, namely, Messrs Chiragh and Sons after having obtained a financial facility upto the tune of Rs.1,50,000 on the 27th of April 1973, as cash credit with interest with quarterly rests against the hypothecation of stock of hardboard Formica and a registered mortgage to the extent of Rs.90,00f over property owned by his wife-defendant No.2. Additionally he was alleged to have executed a demand promissory note for the same amount on the 22nd of May, 1973. Likewise, his wife appellant No.2 Ms. Asma Sultana allegedly created a collateral mortgage of her Plot No.87-A as security for repayment of the debt. The respondent-Bank asserted that the appellant-loanee availed the facility but failed to keep the terms and conditions thereof in the matter of its liquidation. As a result the balance of the amount mentioned above was sought to be recovered through the present suit.

3. The appellants applied for leave to defend maintaining that their stocks pledged with the respondent-Bank had been damaged/destroyed and that as a consequence they were relieved of their liability to pay them anything more. They further contended that only a sum of Rs.4,00,000 was obtained by them but seeking to recover a much higher sum of .Rs.8,13,581.81 was based upon some miscalculation and inclusion of penal interest which was not recoverable as per terms and conditions of the facility. The learned Special Judge Banking granted them permission by his order dated the 3rd of May, 1984, on the condition that they would deposit at least the admitted sum of Rs.4,00,000 in cash by or before the 21st of July, 1984. The appellants instead of availing the concession shown to them challenged the order before the High Court in writ Petition No.2484/84. It was dismissed on the 5th of June, 1984. They took up the matter even to the Supreme Court where their Civil Petition for Leave to Appeal No.964 of 1984 was also dismissed. Thereafter they sought a period of two months indicating their desire to make the deposit in the Courts. They were allowed the same till the 15th of October, 1984, but having failed to make the deposit, they again obtained successive adjournments till the 30th of April, 1985, when the appellant Chiragh Din brought a suit for rendition of accounts against the respondent-Bank. Since there was no stay order issued in the said suit presumably the appellants failed to appear before the lower Court which passed an ex parte preliminary decree impugned in the present appeal.

4. Counsel for the appellants reiterated that the condition of depositing Rs.4,00,000 attached to the permission granted to them to defend the suit was very harsh and that they should have been as a matter of course allowed to defend the suit without subjecting them to such an oppressive and unworkable order. On the other hand, Mr. Saleem Saigol, Advocate for the respondent-Bank contended that this ground was turned down not only by the lower Court but also the High Court in Writ Petition No.2484/84 and eventually even the Supreme Court. He stressed that the appellants had not been fair in their dealings inasmuch as they had been giving assurances to the lower Court time and again for making the deposit and prolonged the process for ever a year when quite contrary to their earlier utterances they preferred a civil suit for rendition of accounts against the respondent. Such a conduct on the part of a borrower, according to counsel, was on the one hand betrayal of commitment and on the other frustration of the process of law which they thwarted by seeking adjournments over and again to liquidate the debt.

5. The record lends unimpeachable support to the contention raised on behalf of the respondent decree-holder. Basically the liability was not denied. Even the amount said to have been originally borrowed was not deposited in deference to the orders of the Court. Rather many times willingness to make the deposit was shown but ultimately even at the cost of showing disrespect to the orders of the Court and their own overtures, the appellants backed out. We find no justification to interfere with the impugned judgment and decree. Those are affirmed and the appeal is dismissed with costs. M.Z.S./C-40/L Appeal dismissed.