2023 PLP 715 (CLD)

SHAHID KARIM, J.

This judgment will decide P.L.A. No.2018 of 2021 filed on behalf of the defendants Nos.1 to

4. Remaining are proforma defendants and claim to have charges of varying nature on the mortgaged properties.

2. It is the case of the plaintiff as set up in the plaint that the defendants have been availing finance facilities since 2015 which were enhanced and renewed from time to time. These facilities were secured by mortgage and other charge on movable and immovable assets of defendant No.1 company. In the year 2017 the defendants made a request for renewal and sanctioning of new facilities which was done on 14.7.2017 and a facility offer letter was issued. The finance facilities consisted of Letter of Credit Facility for an amount of Rs.1,206,000,000/- for purchase of petroleum and allied products. The commission was also fixed as flat 0.20% p.q. (LC pending only). The next facility was a Running Finance Facility for an amount of Rs.200,000,000/- with an expiry as 13.07.2018 and the third facility was a Term Finance Facility which was also a fresh facility for an amount of Rs.62,900,000/- with an expiry of three years from disbursement. The necessary documents such as agreement for financing and other documents relating to mortgage etc. were also executed between the parties. The defendants Nos.2 to 4 executed personal guarantees. In 2018 the defendants requested for enhancing of LC facility which was done on 11.5.2018 with an expiry date of 21.7.2018. The last renewal was made on 7.5.2019 at the request of the defendants and further documentation was executed between the parties. The plaintiff claims a cumulative amount of Rs. 1,163,107,462.15 as outstanding against defendants Nos.1 to 4.

3. Learned counsel for the applicants/defendants has raised objections regarding the precise amount by way of principal to be due from the applicants/defendants. However, there is no denial of the execution of the various documents which clearly show that the applicants/defendants admitted availing of the finance facilities and in particular in the application made to the plaintiff-Bank for renewal and sanctioning of new facility dated 14.7.2017 and the amounts outstanding against the defendants have been mentioned and acknowledged. Moreover, the Borrower's Basic Facts Sheet which accompanied the request dated 8.5.2017 admits the facilities to have been availed from the plaintiff and the amounts to be overdue in respect of those facilities. Once again in the facility offer letter the applicants/ defendants have admitted the liability to be due and have countersigned the facility offer letter which signatures are not denied. Thus, there is no cause for holding that the contention regarding the fact that the applicants/ defendants are not liable for the repayment of principal amount has no legal basis.

4. However, there is considerable force in the contention of the applicants/ defendants regarding claim of markup made in the plaint by the plaintiff-Bank. For example, with regard to Letter of Credit facility, an amount of Rs.82,116,901.68 has been claimed as markup till 02.12.2020. On the contrary in paragraph 15 of the plaint no such claim has been made by the plaintiff and what was due to the plaintiff was an amount of commission which has already been referred as having been mentioned in the facility offer letter. There is no basis for claiming an amount of markup on the facility of letter on credit and the amount of Rs.82,116.901.68 is deleted.

5. With regard to other two facilities, i.e. RF and TF facilities, once again learned counsel for the applicants/ defendants is correct in pointing out that the date of expiry of the agreement in respect of these facilities was 31.12.2019 and any amount charged beyond that period is unlawful. Thus in respect of TF facility the expiry period was three years which was to end on 14.7.2020 and the markup accrued till 01.07.2020 as reflected in the statement of accounts comes to PKR 2,623,048.64. Likewise in respect of RFF the expiry date is 31.12.2019 and the markup till that date comes to PKR 27,003,644.72. No other issues were raised by the applicants/defendants Nos.1 to 4 which would entitle the said defendants to grant of leave to defend. The application for leave to defend is hereby dismissed.

6. As a result of the dismissal of the application for leave to defend, the instant suit is decreed in favour of the plaintiff-Bank and against the applicants/defendants Nos.1 to 4 jointly and severally for a sum of Rs.1,053,780,483.56 with costs of funds in terms of section 3 of the Ordinance, 2001. The costs of the suit are also granted.

7. The decree having been passed, the suit to the extent of defendants stands converted into execution proceedings. The particulars of the mortgaged, pledged or hypothecated property shall be filed by the decree-holder. Adjourned to 27.09.2022. SA/S-30/L Suit decree