1989 PLP 4291 (MLD)

Begum Nusrat Bhutto v. Pakistan PLD 1977 SC 657 ref. (b) Limitation Act (IX of 1908)

S. 19--Banking Companies (Recovery of Loans) Ordinance (XIX of 1979), S. 6--Limitation--Letter of guarantee was executed by defendant on 28-4-1982 while suit was filed on 5-10-1986--Defendant during that period not only acknowledged his liability to the loan amount but also extended promises to repay the sum--Such acknowledgements were within period of limitation--Suit was held within time. (c) Civil Procedure Code (V of 1908)

O. XXXVII, R. 3 (2)--Banking Companies (Recovery of Loans) Ordinance (XIX of 1979), S. 6--Leave to defend suit--Defendant was not principal debtor but only a guarantor--Leave to defend granted on furnishing by defendant a Bank guarantee equal to the claim in suit. Abubakar Chundrigar for Plaintiff. U. Naimat Molvi for Defendant No.

2. This application under Order XXXVII, Rule 3 sub-Rule (2) CPC, is filed by the defendant No. 2, for leave to the suit. Defendant No. 2 is Guarantor of defendant No. 1 who is principal debtor in the case. Mr. U. Naimat Molvi, the learned counsel for the defendant No. 2 has advanced three contentions in support of the application. It is firstly contended by the learned counsel that the Banking Companies (Recovery of Loans) Ordinance 1979 is unconstitutional, void ab initio and patently beyond the scope of the Doctrine o necessity as enunciated in the case of Begum Nusrat Bhutto v. Pakistan (PLD 1977 SC 657). It is also contended by the learned counsel that 8th A Amendment in the Constitution, having not been assented to by the President till today, the Ordinance of 1979 is not an existing law. Apart from it the above Constitutional points urged in support of leave application, the learned counsel on merits contended that the claim in suit against his client is barred by time. It is urged that letter of guarantee was executed by the defendant No. 2 on 28-4-1982 while the letter which is claimed by plaintiff as an acknowledgement of debt by defendant No. 2 is dated 24-3-1986. It is accordingly contended by the learned counsel that the alleged acknowledgement of debt having been made by defendant No. 2 after the expiry of period of three years is of no avail under section 19 of the Limitation Act. In so far the first two contentions of the learned counsel are concerned the same cannot be examined here by me as I am exercising jurisdiction presently under the provisions of Banking Companies (Recovery of Loan) Ordinance 1979. On merits the learned counsel has contended that the claim against his client is time-barred. It is true that the letter of guarantee was executed by defendant No. 2 on'28-4-1982 while suit is filed on 5-10-1986, but the defendant No. 2 time and again during this period not only acknowledged his liability to the amount of loan but also extended promises to repay the same. This is sufficiently established by letters dated 2nd April, 1983 Annexure "H", 5-11-1983 Annexure "I", 9-1-1984 Annexure "J", 30th May, 1984, Annexure "K", 5-11-1984 Annexure "B" and 24-3-1986 Annexure "M" filed with the Plaint. In all these letters which are written by defendant No. 2, after execution o letter of guarantee dated 28th April, 1982, he not only acknowledged his liability to debt but also promised its repayment. These acknowledgements by defendant No.2 were within the period of limitation. The suit is therefore within time against defendant No.

2. No other contention have been raised by the defendant No. 2 merits, however keeping in view that the defendant No. 2 is not a principal debtor but only a Guarantor. I grant conditional leave to defendant No. 2 upon furnishing by him a bank guarantee equal to the claim in the suit within on month from today. Defendants Nos. 1 and 3 are called absent. Suit to proceed e parte against them. M.A.K/H-148/K Leave granted.