1989 PLP 1173 (CLC)

Suit No.81 of 1987, decided on 11th February, 1988. ‑‑‑Ss.6 & 8‑‑Suit for recovery‑‑Defendants acknowledged loan and as security for repayment executed promissory note and as an additional security delivered letter of continuity, letter of arrangement and letter of hypothecation‑‑Defendants failed and neglected to repay loan/credit facilities and instead of liquidating their loan liability, disposed of Part of hypothecated goods/stock without consent of Bank‑‑Service of summons to defendants was held good‑‑None of defendants applied for leave to appear and defend suit‑‑Statement of account filed by Bank along with plaint, which was on oath had not been denied by defendants‑‑Suit decreed in circumstances. Haider Mota and Co. for Plaintiff. Date of hearing: 11th February, 1988. This suit was filed on 17‑1‑1987 for recovery of Rs.30,44,290.45 inclusive of interest as on 31‑12‑1986. The plaintiff is a banking company and the defendant No.l is a registered partnership firm. The defendant No.2 is the managing director while defendants 3 to 7 are the partners of the defendant No.l. It is alleged in the plaint that defendants 1 to 7 at all material times maintained and still continue to maintain the two accounts namely (i) loan against Foreign Bills (LAFB) and (ii) loan against Packing Credit Part I (LAPC‑1) in the name of defendant No.l, with the plaintiff's branch at I.I. Chundrigar Road, Karachi. The defendants from time to time requested and the plaintiff allowed the defendants Loan/Credit facilities as mentioned in the statements of the aforesaid accounts. The said loan/credit facilities were availed by the defendants from time to time inter alia from the said accounts. It is alleged in the plaint that as security for the repayment of the said loan/credit facilities executed promissory note in the sum of Rs.6,69,119 on 30‑3‑1983 as further security the defendants delivered letter of continuity dated 30‑3‑1983, letter of arrangement dated 30‑3‑1983, letter of hypothecation dated 30‑3‑1983. To further secure the above loan and credit facilities, the defendants credited equitable mortgaged of Industrial Plot No.F/153 SITE Survey Sheet No.35P/1 35/13 measuring one acre together with all constructions, super‑constructions, fittings, fixtures standing thereon and machinery installed thereon. As on 30‑6‑1985 and 30‑12‑1985 the defendants' indebtedness in the said LAFB account was Rs.13,35,806 and Rs.14,04,403 which indebtedness were confirmed, acknowledged and agreed in writing vide debit balance confirmation letters dated 15‑8‑1985 and 30‑12‑1985. As on 5‑5‑1983 the defendants' indebtedness in the said LAPC‑1 account was Rs.12,00,000 which indebtedness was acknowledged and as security for the repayment thereof executed promissory note dated 5‑5‑1983 in the sum of Rs.12,00,

000. The defendants as an additional security delivered letter of continuity dated 5‑5‑1983, letter of arrangement dated 5‑5‑1983, letter of hypothecation dated 5‑5‑1983, packing credit letter dated 5‑5‑1983 and partnership letter dated 5‑5‑1983. As on 31‑12‑1983 and 13‑12‑1984 the defendants' indebtedness in the said LAPC‑1 account was p, Rs.17,82,000 and Rs.25,98,993 respectively which indebtedness were confirmed, acknowledged and agreed in writing vide debt balance confirmation letters dated 31‑12‑1983 and 18‑2‑1985. The defendants also executed and delivered a letter of hypothecation dated 14‑10‑1983. The defendants failed and neglected to repay the loans /credit facilities. The defendants instead of liquidating their loan liability, disposed of part of the hypothecated goods/stock without the consent of the plaintiff bank. That as on 30‑12‑1986 a sum of Rs.14,52,852.45 in LAPC‑1 account and a sum of Rs.15,91,438 in LAFB account totalling Rs.30, 44, 290.45 stood outstanding against the defendants. The debt having not been paid, this suit was instituted. Summons issued to the defendants 1 to 7, registered acknowledgement dues were also sent to all the defendants. Service was held good. None of the defendants have applied for leave to appear and defend the suit. The statement of account filed by the plaintiff bank shows that on 30‑12‑1986 a Sum of Rs.30,44,290.45 was due and payable by the defendants. The statement of account filed by the plaintiff along with the plaint which is on oath has not been denied by any of the defendants. I, therefore, hold that on 30‑12‑1986 a sum of Rs.30,44,290.45 was due and payable by the defendants jointly and severally to the plaintiff. However, for the present I only grant a preliminary decree in Form 5‑A, against the defendants who were the mortgagors of the property. The plaintiff will also be entitled to costs and interest at the rate claimed in the suit. M.Y.H./U‑43/K Suit decreed.