2004 PLP 389 (CLD)

‑‑‑‑Ss.6 & 9‑‑‑Suit for recovery or loan amount‑‑‑Failure of defendant to furnish required surety by specified date‑‑Application for extension of time to furnish surety was rejected and suit was decreed on basis of such failure‑‑ Validity‑‑Son of Managing Director of defendant‑Company had died at relevant time thus, during such mourning period, no one could be said to be negligent or deliberately non‑complying the order‑‑‑Bank had not rebutted or controverted defendant's plea raised in application to the effect that counsel could not inform Managing Director of defendant‑Company about such order‑‑‑Order refusing extension to defendant in facts and circumstances of case was harsh and illegal, which violated fundamental rules of justice‑‑‑Defendant had furnished surety under direction of High Court, thus, extension would be deemed to have been granted by High Court‑‑‑High Court allowed appeal, set aside impugned decree and remanded case or its decision in accordance with law. Riyasat Ali Chaudhary for Appellant. Rashdeen Nawaz Kasuri for Respondent. Date of hearing: 10th February, 2003. MIAN SAQIB NISAR, J.‑‑‑Brief facts of the case are that the respondent‑Bank, brought a suit for recovery of Rs.20,62,127 against the appellant company, through its Managing Director, Muhammad Ashiq Bhatti, under the provisions of Banking Tribunals Ordinance, 1984; the appellant replied to the show‑cause notice, issues were framed, parties concluded their evidence, when at the later stage of the case, the appellant, was required to furnish the surety to the tune of Rs.21,00,000, by or before 2‑4‑1997, vide, order dated 25‑3‑1997. The appellant, could not furnish the surety, due to the death of the son of the Managing Director of the company. Anyhow, the appellant company applied for the extension of the time for furnishing surety, which application was rejected on 11‑4‑1997, and the same day, the decree was passed. This R.F.A. was admitted to regular hearing on 22‑5‑1997, when the time was granted to the appellant, to furnish surety till 16‑6‑1997, in terms of the order dated 25‑3‑1997 of the Court below, this order has been complied with by the appellant.

2. We have heard the learned counsel for the parties and find, that the son of the Managing Director of the appellant company, died on 9‑3‑1997, and during this mourning period, obviously, no one can be said to be negligent or deliberate in not complying the order. Moreover, the application of the appellant, for the extension of time, in which it was stated that the counsel could not inform the Managing Director of the appellant company, about the order, has not even been rebutted or controverted by the respondent side, before the Banking Court. Resultantly, we find that the order the extension to the appellant, in the facts and circumstances, is harsh and illegal, which violates the fundamental rules of justice. In these circumstances, the appellant was entitled to the extension of time, and now when under the direction of this Court, the surety has been so furnished, the extension would be deemed to have been granted by this Court. Resultantly, the decree on the basis of the failure of the appellant, to furnish surety, cannot be sustained, therefore, it is set aside, and the matter is remanded to the learned Banking Court, for its decision in accordance with law. During this period, the appellant should keep the surety alive. The parties are directed to appear before the Banking Court on 3‑3‑2003. Accordingly, this appeal is allowed. S.A.K./B‑134/L Case remanded.