1997 PLP 2020 (MLD)

Muslim Commercial Bank vide its Area Executive Office Karachi ' C', Hyderabad/Sukkur Letter No.AEO/C/HS/Misc/71 dated 23‑8‑1992 indicated the settlement of its dues, if any, after the sale of our client's Thatta & Dadu Sugar Mills which is in process."

7. Mr. Ismail Merchant has drawn my attention to the letters, Annexures D‑3, D‑12, D‑13, D‑16 and D‑23, issued by the defendant No.1 to the plaintiff's Branch at Thatta. Perusal of these letters clearly shows that the parties were negotiating for settlement of the accounts or for the waive off the interest portion of the loan.

8. Mr. Ismail Merchant, learned counsel for the plaintiff, has cited following case‑law: (1) AIR 1939 Mad. 300 Case of V. Subbaramayya v. Yerri Iragam Reddi and another: The‑rule laid down in this authority is as under:‑‑‑ "Admission of existence of open account and expression of willingness to have it settled implies admission of liability for amount which may be found due on settlement." (2) AIR 1960 SC 953 Case of Sahibzada Muhammad Kamgarh Shah v. Jagdish Chandra Deo and others: In this authority it is held as under:‑‑‑ "A letter sent by the defendant to the plaintiff stated that a sum as shown in the enclosure to the document was according to the defendant due to the plaintiff for 1930 on account of royalty. This was followed by a sentence that as soon as the statement of dues was accepted as correct a cheque in payment thereof would be sent." (3) PLD 1971 SC 784 Case of M/s. Jamal Jute Baling & Co. v. M/s. M. Sarkies & Sons: In this authority the Hon'ble Supreme Court has held as under:‑‑‑ "A legal person is entitled to carry on business in different assumed names and styles. A parent company carrying on business under name of Messrs F & Co. having a department set apart for dealing in business of jute and this department run under name and style of Messrs S & Sons. Contract signed on behalf of S & Sons valid." (4) PLD 1974 SC 174 Case of M/s. M.G. Kadir & Co. v. Abdul Latif: In this authority the Hon'ble Supreme Court observed as under:‑‑‑ "Acknowledgement of liability‑‑‑In reply, to letter of demand by creditor, debtor writing "you are no doubt correct in stating that there is a credit balance of Rs.20,500 in your personal account in my books" but at the same time debtor claiming a set‑off‑‑‑Writing by debtor, held, amounted to unequivocal admission of existing liability‑‑‑Limitation for recovery consequently extended under section 19 for three years from the date on which letter was written." (5) PLD 1986 Karachi 464 Case of Messrs United Bank Ltd. v. President, Bazm‑e‑Salat and another: In this case His Lordship Saleem Akhtar, J. (as then he was) has held as under:‑‑‑ "The guarantee being always by the third person and not by borrower himself. In these circumstances the cutting of the rubber stamps represented the correct and true intention of the parties and did not invalidate the letter of guarantee. From the contents of the letter of guarantee it seems that the defendant No.2 had undertaken to guarantee the repayment of the loan advanced to the defendant No.1. Therefore, filling in the blank in the letter of guarantee so far the amount of loan is concerned, cannot be challenged. Although the amount was written in the letter of guarantee afterwards, from its contents the intention of the parties can be ascertained, as it refers to payment of all money which shall at any time be due from the defendant No. 1. (6)1992 CLC 1108 Karachi Case of Grindlays Bank Ltd. v. Messrs Cheap John: The learned Judge was pleased to observe as under:‑‑‑ "The liability was acknowledged in writing by defendants from time to time in their various letters, first of which was dated 23‑10‑1968 and the last is dated 22‑4‑1975. In these letters the defendants had acknowledged the debt and in the last letter requested for three months' time. The suit is therefore, within time. "

9. From the perusal of the letters herein referred to above and the contents of the continuing guarantee, specially paragraphs (e), (f), (g) and (h) and the contents of the letter of the legal consultant of the defendant to the plaintiff, which has been referred in the earlier part of this order, prima facie, it is clear that the suit is not barred by the provisions of Limitation Act. The defendants on their own had furnished the guarantee with the plaintiff and are bound for repayment of the loan alongwith mark‑up. There is applicability in the case‑law cited by Mr. Ismail Merchant so far the facts and circumstances of this case are concerned.

10. At the time of arguments, Mr. Ismail Merchant, had stated at the Bar that leave may be granted to the defendants to appear and defend, the suit on furnishing security. However, in view of the facts of the case I grant leave to defendant No‑2 to appear and defend the suit on furnishing bank guarantee in favour of the plaintiff before the Nazir of this Court to, the satisfaction of the decree with a period of 60 days. A.A./M‑96/K Order accordingly.