2011 PLP 1058 (CLD)

KH. IMTIAZ AHMAD, J.

This Civil Revision is directed against the order dated 26-11-2008 passed by the learned Additional District Judge, Multan, who while allowing the petition to defend the suit filed under Order XXXVII, C.P.C. imposed the condition of submission of bank guarantee equal to the disputed amount upto 2-1-2009.

2. The relevant facts for the disposal of this Civil Revision are that Muhammad Siddique respondent herein filed a suit against the petitioner through Muhammad Shabbir defendant No.2 as Chief Executive and one Shahid Iqbal for recovery of Rs. 1,37,75,

000. The claim of plaintiff in the suit was that the plaintiff was renowned businessman and about 5 years ago Muhammad Shabbir defendant No.2 established his own company in the name of Messrs Meraj Agro Chemicals (Pvt.) Ltd. defendant No.1 and started the business of packing and selling pesticides. The plaintiff due to his cordial relationship with him started purchasing pesticides from him. Defendant No.2 taking advantage of his intimacy succeeded in obtaining loans from him for development and expansion of his business and obtained it in instalment and total loan obtained by defendant No.2 was Rs.1,26,00,

000. It was further alleged that defendant No.2 failed to pay the loan and issued a cheque of Rs.1,37,75,000 which was dishonoured. The defendant in application for leave to defend the suit took the plea that in fact Muhammad Tariq was Accountant of petitioner's firm for the last 4/5 years and all the accounts of petitioner-company as well as personal account of petitioner No.2 were lying with him and said Muhammad Tariq on behalf of company done all matters in respect of accounts. In December, 2005 he left the job without intimation and without handing over record of accounts disappeared and on inquiry it was found that Rs.5,00,000 was missing along with books of account as well as along with cheque books belonging to the petitioner. He was contacted and he confessed his guilt before the witnesses and disclosed that Muhammad Siddique plaintiff and Muhammad Yasin brother of Siddique were also accused with him so criminal case bearing F.I.R. No.73 dated 16-3-2006 under section 408, P.P.C. was registered against the accused. It was further mentioned that cheque in dispute is one of the cheques which were missing and stolen by said Muhammad Tariq who was also son-in-law of Muhammad Siddique plaintiff. The learned trial Court after hearing the parties allowed the petition to defend the suit subject to submission of bank guarantee equal to the disputed amount up to 2-1-2009 vide order dated 26-11-2008.

3. Learned counsel for the petitioner contends that the plausible defence has been agitated before the learned Trial Court, so, the imposition of condition of deposit of bank guarantee is harsh condition and instead some lenient condition should have been imposed. In this behalf he has placed reliance upon "Abdul Rauf Ghauri v. Mrs. Kishwar Sultana and 4 others" (1995 SCMR 925), "Agha Jee Cotton Factory v. Hakim Trading Company Rahim Yar Khan" (1995 CLC 302 Lahore), "Sarang v. Haji Mahmood" (NLR 1994 AC 658 Lahore).

4. On the other hand, learned counsel for the respondent has contended that the petitioner is Meraj Agro Chemicals (Pvt.) Limited but in the end of petition Crescent Leasing Corporation is typed, so, the petition is defective and that other defendants are not made party. He contends that condition was rightly imposed by the learned trial Court since there was no plausible defence. He has placed reliance upon "Khalid Javed and Co. v. Javed Oil Industries" (1988 SCMR 391), "Messrs Ark Industrial Management Ltd. v. Messrs Habib Bank Limited" (PLD 1991 SC 976), "Muhammad Tariq Siddiqui v. Nasir Ali and another" (2011 CLC 191 Karachi), and "Rasa Saeed Ahmad Khan v. Sabir Hussain" (2000 CLC 199).

5. Arguments heard. Record perused.

6. As far as the legal objection raised by the learned counsel for the respondent is concerned, in the beginning of revision petition and in the title the name of firm is rightly mentioned but in the end where the signatures are to be made it is typed as Crescent Leasing Corporation which appears to be a clerical mistake. The contesting defendant is the company itself who has been issued through its Chief Executive Muhammad Shabbir and respondent No.3 has no concern with the said loan so this defect is also not of any material effect.

7. What is to be seen by the court is that. whether there was any plausible defence put up by the defendant. The suit was filed on 30-10-2006 while in a petition for leave to defend it is specifically mentioned that Muhammad Tariq Accountant of the firm had taken away the account books as well as cheques and the criminal case bearing F.I.R. No.73 dated 16-3-2006 under section 408, P.P.C. was registered against the accused. In this way the criminal case was registered prior to the filing of present suit. It is also admitted by the plaintiff that said Muhammad Tariq Accountant of the firm was his son-in-law, thus, apparently their appears to be plausible defence. I have also gone through the case-law cited by both the parties and perusal of which shows that each case has its own peculiar facts. It is the discretion of the court to impose the condition but in a case-law reported in (1995 SCMR 925), the principle was laid down that it should not be a harsh condition. In the said ease also the Bank guarantee was modified. In the present case as has been mentioned above that the petitioner had plausible defence, in this way it would be in the interest of justice that instead of imposing harsh condition of submission of Bank guarantee the petitioner be directed to submit personal surety bond/surety bond of any other person supported by the documents of title of immovable property, the value of which should be equal to disputed amount. The condition imposed by the learned Trial Court is amended in the above mentioned terms and the petitioner is directed to submit the said surety bond within 15 days from the passing of this order. 7.(sic.) The petition stands disposed of accordingly. S.A.K./M-822/L Revision accepted.