1986 PLP 673 (CLC)

(2) Whether the guarantee in question is void for want of consideration or any other reason? (3) Whether the defendant No.2 is discharged from his liability on account of the conduct of the plaintiffs, whereby any alleged rights have been lost by the defendant No.2 against the defendant No.l? (4) Whether any amount is due to the plaintiffs from defendant No.l on account of overdraft facilities or other accommodation. If so, what amount? (5) Whether the defendant No.2 is liable under the said guarantee.If so, to what amount? (6) Whether the accounts filed by the plaintiff are not correct. If so, in what respect? (7) Is not defendant No.2 entitled to a decree in like amount against defendant No.l if a decree is passed against him? (8) What should the decree be?

2. After the issue had been settled, the case had been fixed for evidence on several dates but no appearance had been made on behalf of the defendant No:l. Defendant No.2 and the plaintiff settled the matter amongst themselves and defendant No.2 made a payment of Rs.25,000 to the plaintiff‑bank and by order; dated 18‑9‑1985, the plaintiff withdrew the suit as against defendant No.2. Now the only defendant in the present suit is Mushtaq Ahmed Allahwala, on whose behalf no one has appeared. In view of the suit having been withdrawn against defendant No.2, issues Nos.2, 3, 5 and 7 have become redundant and the only issues which remain are issues Nos.l, 4, 6 and

8. As observed earlier, no appearance has been made on behalf of the defendant Mushtaq Ahmed Allahwala. The plaint is verified on solemn affirmation and on behalf of the plaintiff‑bank Syed Azam son of Syed Imam, an Officer of the plaintiff‑bank, has filed his affidavit of ex parte proof which is supported by various documents. I have heard Mr. K.S. Talati, Advocate for the plaintiff. As observed earlier, no one appears on behalf of the defendant Mushtaq Ahmed Allahwala.

3. Issue No.l relates to limitation. Learned counsel has relied upon various acknowledgments of the defendant including the last acknowledgment, which is dated 1‑11‑1970. In this document, defendant has acknowledged payment due from him to the plaintiff‑bank. The present suit was filed on 15‑10‑1973. The suit 'is, therefore, within time and is not liable to be dismissed on the ground of limitation. Issue No. 4 is about the amount due from the defendant to the plaintiff‑bank. The amount due is proved by the statement of accounts filed by the plaintiff‑bank, which bears the certificate under the Bankers Books Evidence Act. Then there are acknowledgments of the amount A due. According to the documents filed by the plaintiff and according to the plaint which is verified on solemn affirmation and the affidavit of ex parte proof a sum of Rs.1,12,160.11 is due from the defendant to the plaintiff. The record establishes that this amount is payable the defendant to the plaintiff. Issue No.4 is decided accordingly. Issue No.6 is whether accounts filed by the plaintiff‑bank, not correct. As observed earlier, no appearance has been made behalf of the defendant. The accounts submitted by the plaintiff rem unchallenged. Issue No.6 is decided against the defendant. The plaintiff is entitled to a decree in the sum of Rs.1,12,160. minus Rs.25,000 which has been received by the plaintiff from t defendant No.2. .Suit No.457/73 is decreed in favour of the plaintiff and as again defendant Mushtaq Ahmed Allahwala in the sum of Rs.87,160.11 we interest at the rate of 111 per cent. per annum from the date of the filing of this suit till realization. The plaintiff shall also be entitled costs. H. B. T.